Any employee in a private or public enterprise can exercise their right to take unpaid leave. Unforeseen family circumstances or health problems in close relatives who need care may force him to such actions. Consider the procedure for issuing and granting leave without pay.
2. B, marked "TO" or "16." (in the case of granting unpaid leave with the permission of the employer), marked "OZ" or "17" (in the case of granting unpaid leave as provided by law).
How can an employee return to work early from unpaid leave?
The Labor Code of the Russian Federation provides an opportunity for each employee to return to the performance of their labor duties ahead of schedule.
The only condition for the termination of unpaid leave is the agreement of the parties (employer and employee). To do this, the employee must submit a written application addressed to his supervisor.
It can be free-form, but must contain:
- required details;
- employee explanation;
- the exact date when the employee will be ready to start his duties.
After the resolution of the management, the personnel department will issue an order, on the basis of which the accounting department will again calculate the salary of the employee who interrupted his days off. A corresponding entry on the termination of unpaid leave will also be made in the employee's personal card.
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As part of the social protection of an employee, he may be granted unpaid leave. The possibility of granting such leave to an employee is provided for by Art. 128 of the Labor Code of the Russian Federation.
The duration is determined by agreement between the employee and the employer. The reasons for providing it can vary. In most cases, the granting of such leave is a right, but not an obligation of the employer.
So, according to Part 1 of Art. 128 of the Labor Code of the Russian Federation for family reasons and other valid reasons, an employee, upon his written application, may be granted unpaid leave, the duration of which is determined by agreement between the employee and the employer. But in some cases, the provision unpaid leave on the basis of a written application from the employee, it is imposed on the employer.
Here is a list of "valid" cases, the duration of such leave and the grounds for granting it:
Vacation type Duration
leaveArticle
Labor Code of the Russian FederationParticipants of the Great Patriotic War Up to 35 calendar
days a yearPart 2
Art. 128Working old-age pensioners (for
age)Up to 14 calendar
days a yearParents and wives (husbands) of military personnel,
dead or dead due to injury,
contusion or injury caused by
performance of military service duties,
either due to a disease associated with
military serviceUp to 14 calendar
days a yearWorking disabled Up to 60 calendar
days a yearTo employees in cases of childbirth,
registration of marriage, death of loved ones
relativesUp to five
calendar daysIn cases provided for by the collective
treatyAgreed upon in
collective
treatyIn cases provided for by federal
lawsAgreed upon in
the corresponding
federal law
tests in educational institutions
higher professional education15 calendar
daysPart 2
Art. 173Employees - students of preparatory
branches of educational institutions
higher professional education for
passing final exams15 calendar
days
state accreditation
educational institutions of higher
work:15 calendar
days in class
year
state examsfour months for delivery of final state
examsone month Employees admitted to introductory
tests in having state
accreditation educational institutions
secondary vocational education10 calendar
daysPart 2
Art. 174Employees who are trained in having
state accreditation
educational institutions of secondary
full-time vocational education
a form of study combining study with
work:for passing intermediate certification 10 calendar
days in class
yearto prepare and protect the graduation
qualification work and delivery of final
state examstwo months for passing final exams one month Parental leave up to 3 years old
age (up to 1.5 years partially paid
state)h. 1
Art. 256Maternity leave
(paid by the FSS RF)Art. 255 Part-time vacation (if on the main
work duration of annual
paid vacation more than
part-time work, then on his
he may be granted leave on request
without pay)Part 2
Art. 286Employees working in the areas of Extreme
North and equivalent areasThe time it takes
to drive to
place
use
annual leave
and backArt. 322 Note! The legislation does not contain an unambiguous definition of the concept of close relatives. In the Labor Code of the Russian Federation, this concept is not deciphered.
The Family Code of the Russian Federation (Art. 14) refers to close relatives of relatives in a direct ascending and descending line (parents and children, grandfathers, grandmothers and grandchildren), full and incomplete (having a common father or mother) brothers and sisters; Code of Criminal Procedure of the Russian Federation (clause 4 of Art. 5) - spouses, parents, children, adoptive parents, adopted children, brothers and sisters, grandfathers, grandmothers, grandchildren; Tax Code of the Russian Federation (clause 18.1 of Art. 217) - spouses, parents and children, including adoptive parents and adopted children, grandfathers, grandmothers and grandchildren, full-blooded and incomplete (having a common father or mother) brothers and sisters; Code of Civil Procedure of the Russian Federation (clause 2 of Art. 281) - parents, children, brothers, sisters.
Thus, it is up to the employer to decide who should be classified as a close relative, in the event of whose death the employer is obliged to provide the employee with unpaid leave.
The list given in the table is not exhaustive, since the right to such leave is provided for by various federal laws. So, for example, all categories of veterans (disabled veterans, war veterans, etc.) in accordance with Federal Law of 12.01.1995 N 5-ФЗ "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 stipulated in a collective agreement. The list of such vacations is given in Art. 263 of the 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 the age of 14;
- employees with a disabled child under the age of 18;
- a single mother raising a child under the age of 14;
- a father raising a child under the age of 14 without a mother.
If the employer refuses to provide the employee 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 a dismissal, most likely, will 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 it is not absenteeism that the employee uses rest days 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 employer's discretion” (clause 39 of the Resolution of the Plenum of the RF Armed Forces of 17.03 .2004 N 2).
It should be recalled that unpaid leave, granted by agreement between the employee and the employer without good reason, is included in the length of service, which gives the right to annual leave, only in a total amount not exceeding 14 calendar days during the working year (Art . 121 of the Labor Code of the Russian Federation).
If during the working year the employee was granted unpaid leave of 14 days or more, then the boundaries of the employee's working year must be transferred to the number of calendar days that is not included in the length of service for calculating the vacation.
Attention! Unpaid leave of up to 14 days does not move 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 for 7 and 10 calendar days. The total duration of these vacations is 17 calendar days. Accordingly, the end of this working year will shift for him by 3 calendar days (17 - 14). Consequently, 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 for 7, 3 and 4 calendar days. The total duration of these vacations is 14 calendar days. It does not exceed the established duration, respectively, the time of these vacations is included in the length of service, which gives the right to annual paid leave.
Note! Unpaid leave granted in accordance with the law (see the table below) is not included in the length of time that entitles you to leave.
As noted, the employer does not have the right to send an employee on unpaid leave. 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 Clarification of the Ministry of Labor of Russia of June 27, 1996 N 6 "On unpaid leave at the initiative of the employer", approved by the Resolution of the Ministry of Labor of Russia of June 27, 1996 N 40, it is stated that "unpaid leave can be granted only at the request of employees for family circumstances and other valid reasons. "Forced" unpaid leave at the initiative of the employer is not provided for by labor legislation. "
According to Art. 72.2 of the Labor Code of the Russian Federation, a temporary suspension of work for reasons of an economic, technological, technical or organizational nature is 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 wage. And the downtime for reasons beyond the control of the employer and the employee is paid in the amount of at least two-thirds of the tariff rate, salary (official salary), calculated in proportion to the downtime.
If the employer sends the employee on his own initiative instead of formalizing the downtime on unpaid leave, then this is qualified as a violation of labor legislation. For such a violation, penalties are provided (Article 5.27 of the Code of Administrative Offenses of the Russian Federation):
- an administrative fine for officials in the amount of 1,000 to 5,000 rubles;
- for persons engaged in entrepreneurial activity without forming a legal entity - from 1000 to 5000 rubles. or administrative suspension of activities for up to 90 days;
- for legal entities - from 30 thousand to 50 thousand rubles. or administrative suspension of activities for up to 90 days.
Violation of labor and labor protection legislation by an official previously subjected to administrative punishment for a similar administrative offense entails disqualification for a period of one to three years.
To receive unpaid leave, the employee should write a statement to the employer indicating the reason and the period for granting the leave.
In addition to the mandatory details of any document, the application must indicate:
- start date and duration of unpaid leave,
- the circumstances and reasons for such leave. If there are supporting documents, they should be attached to the application.
If the decision is positive, the management issues an order on granting leave without pay in form N T-6, which should also indicate the period and reasons for granting leave.
We remind you that a note-calculation on the granting of leave to the employee in this case is not drawn up. Information on the provision of such leave is entered in section. VIII of the employee's personal card form N T-2. The time sheet (form N T-12 or N T-13) is marked:
- "OZ" or code 17, if leave is provided under the conditions stipulated by the current legislation of the Russian Federation;
- "DO" or code 16, if the leave is granted with the permission of the employer.
Often an employee for family reasons needs to take leave at his own expense. Therefore, it is usually the employer's right to let an employee go on unpaid unpaid leave or not.
Moreover, b / s leave is given for family reasons and other valid reasons. Moreover, if you carefully study the norms, it turns out that sometimes it is also the responsibility of the company. Moreover, depending on the basis on which the employee goes to rest without saving earnings, there is a way to calculate his length of service.
For family reasons and other valid reasons, the employee, upon his written application, can be provided, the duration of which is determined by agreement between the employee and the employer (part 1). When considering applications, attention is drawn to the specific reasons and circumstances that caused the need for such a vacation. After all, the provision of unpaid leave on the basis of part 1 of Article 128 of the Labor Code of the Russian Federation is a right, not an obligation of the employer, therefore he has the right to refuse to provide it to the 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 in the event that leave is provided at his own expense.
Family circumstances and other justifiable reasons refer to certain events and social needs that have arisen in the employee's personal life. The employer cannot send the 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, the employee, upon his written application, may be granted unpaid leave, the duration of which is determined by agreement between the employee and the employer.
How many days can you take at your own expense at work according to the law
Can I go on vacation without pay for a year? How long can you take a vacation, apply at your own expense under the Labor Code without pay? For how long can a working pensioner or a pregnant woman be sent?
The employer is obliged, on the basis of a written application from the employee, to provide unpaid leave:
participants in the Great Patriotic War - up to 35 calendar days a year;
working old-age pensioners (by age) - up to 14 calendar days a year;
parents and wives (husbands) of military personnel, employees of the internal affairs bodies, the federal fire service, the bodies for control over the circulation of narcotic drugs and psychotropic substances, customs authorities, employees of institutions and bodies of the penal system, who died or died as a result of injury, concussion or injury, received in the performance of military service (service) duties, or as a result of an illness associated with military service (service) - up to 14 calendar days a year;
working disabled people - up to 60 calendar days a year;
employees in cases of childbirth, 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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Provision of vacation leave at your own expense, without preservation of wages in a MANDATORY manner
In some situations, granting leave without pay is the employer's obligation, established by the Labor Code of the Russian Federation. For example, the employees to whom the employer is obliged to provide unpaid leave 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 the service, or as a result of an illness associated with military service;
- working people with disabilities;
- workers in cases of childbirth, marriage registration, death of close relatives.
In addition to the above situations, the Labor Code mentions several more cases when the employer is obliged to provide unpaid leave. For example, such leave is given to those employees who combine work with training in educational institutions of higher and secondary vocational education or enter them.
The labor code, other federal laws, or a collective agreement may provide for other cases when the employer is obliged to provide unpaid leave. For example, part 2 lists the categories of employees to whom the employer is obliged to provide unpaid leave in connection with admission to educational institutions of higher professional education and training in them, these are:
- employees admitted to entrance examinations in 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 in full-time education, combining study with work.
The employer's obligation to provide leave at their 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 Servicemen", spouses of military personnel leave at their request granted simultaneously with the leave of servicemen. At the same time, the duration of the spouses' leave may, at their request, be equal to the leave of military personnel. Just a part of the leave of spouses of military personnel, which exceeds the duration of the annual leave at their main place of work, is granted without pay. In this case, the employer has no right to refuse unpaid leave without pay.
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 up to 14 years old,
- employee having two or more children under the age of fourteen,
- employee having disabled child under the age of eighteen
In addition to the Labor Code, the employer's obligation to grant unpaid leave to certain employees is established in the following federal laws:
- dated 26.11.96 No. 138-FZ - to individual participants in the electoral process at the time of elections to local self-government bodies;
- dated 09.01.97 No. 5-FZ - to Heroes of Socialist Labor and full holders of the Order of Labor Glory;
- dated 12.06.2002 No. 67-FZ - to the candidate's proxies during the referendum;
- dated 10.01.2003 No. 19-FZ - to individual participants in the election of the President of the Russian Federation (proxies of the candidate, members of the election commission with the right of an advisory vote);
- of May 18, 2005 No. 51-FZ - to individual participants in the election process of deputies of the State Duma (proxies of the candidate, members of the election commission with an advisory vote);
- dated 05/27/98 No. 76-FZ - to spouses of military personnel in respect of a part of the leave that exceeds the duration of the annual leave at their main place of work;
- dated 01/15/93 No. 4301-1 - Heroes of the Soviet Union, Heroes of the Russian Federation and full holders of the Order of Glory (additional vacation for up to three weeks a year at a convenient time for them)
The duration of the leave without pay, if the employer is obliged to provide it, is determined by federal law, which provides for such leave at his own expense. Information on the duration of the named 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 | Vacation duration |
|---|---|
| All employees in cases of childbirth, marriage registration, death of close relatives | Up to 5 calendar days on each basis |
| Disabled workers | Up to 60 calendar days a year |
| Working old-age pensioners (by age) | Up to 14 calendar days a year |
| Workers who are parents, wives (husbands) of military personnel who have died or died as a result of injury, concussion or mutilation received in 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 a year |
| Employees admitted to entrance examinations in educational institutions of higher professional education | 15 calendar days |
| Employees - students of preparatory departments of educational institutions of higher professional education | 15 calendar days (for passing final exams) |
| Employees studying in state-accredited educational institutions of higher professional education on a full-time basis, combining study with work | 15 calendar days in the academic year (for passing the intermediate certification); 4 months (for the preparation and defense of the final qualifying work and the passing of the final state exams); |
| Employees admitted to entrance examinations in state-accredited educational institutions of secondary vocational education | 10 calendar days |
| Employees studying in state-accredited educational institutions of secondary vocational education in full-time education, combining study with work | 10 calendar days in the academic year (for passing the intermediate certification); 2 months (for the preparation and defense of the final qualifying work and the passing of the final state exams); |
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Documenting leave without pay
Regardless of whether the vacation is mandatory or not, in order to grant it, the employee must write a statement, where the employee must indicate the reason for the unpaid vacation. In some cases, the employer is obliged to provide such leave (for example, in the event of a wedding or death of a close relative) ().
Director
LLC "Gasprom"
A.V. Ivanov
from the cashier
A.V. Petrova
STATEMENT
I would like to 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
On the basis of the employee's application, issue a vacation order. The order must be signed by the manager, the employee must be familiarized with the order by signing.
The unified form of the order for granting leave (form No. T-6) was approved by the decree of the State Statistics Committee of Russia dated January 5, 2004 No. 1.
The organization may, of its own choice:
- either use unified forms of documents, if approved by the head of the organization in the order on accounting policy;
- or use independently developed forms approved by the head (provided that they contain all the necessary details provided for by the Law of December 6, 2011 No. 402-FZ).
Do not draw up a note-calculation on the granting of leave (according to the form No. T-60 or according to an independently developed form). The fact is that this form is provided for calculating payments that are due to an employee when going on vacation (instructions approved by the Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1). And when an employee leaves for unpaid leave, vacation pay is not charged.
Also, information about the vacations provided by the employee of the personnel service must be entered into the employee's personal card:
- to section VIII of form No. T-2, approved by the decree of the State Statistics Committee of Russia dated January 5, 2004 No. 1), if the organization applies a unified form of the document;
- to 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 (in the form No. T-54 or in a form developed independently).
In the report card, the vacation time is marked with the "DO" code, if the vacation was granted according to the employer's permission, or the "OZ" code, if the employee goes on vacation on the basis of the provisions of the current legislation of the Russian Federation.
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DURATION of vacation at your own expense, without pay
Upon a written application from the employee, the employer can provide the employee with unpaid leave... The duration of unpaid leave is established by agreement of the parties: the employee and the 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: basic or additional (part 1 of article 120 of the Labor Code of the Russian Federation). Thus, if holidays fall on a period of leave without pay, then they are included in the number of calendar days of such leave and do not extend it.
The maximum duration of vacation at own expense in the legislation is not regulated. For how long the vacation is granted, the employer and the employee decide by agreement of the parties. Thus, the employer has the right to provide leave 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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Legend, Time Sheets
OZ- Unpaid leave under the conditions stipulated 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 Legend for timesheet
Days of unpaid leave are completely excluded from the billing period when calculating average earnings, regardless of its duration. The basis is subparagraph "e" of paragraph 5 of the Regulations on the specifics of the procedure for calculating the average wage, approved by the decree of the Government of the Russian Federation of 12.24.2007
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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 during the period of his stay on such leave. Since, according to the employee, cannot be dismissed at the initiative of the employer during the period of his stay on vacation, with the exception of the case of liquidation of the organization or the termination of activities by an individual entrepreneur.
The hospital allowance must also be paid when an employee falls ill or is injured while on annual leave - basic or additional (clause 1 of part 1 of article 9 of the Law of December 29, 2006 No. 255-FZ). During the illness, the vacation period is extended. At the request of the employee, 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 leave from work (except for annual vacations) with or without salary, hospital benefits are not paid to employees. For example, an employee is not paid an allowance for the day of his participation in a court hearing as a juror, as well as days falling on leave at his own expense or parental leave.
If during a vacation without pay, the employee went on maternity leave, then the employer is obliged to pay maternity benefits to her, since the employee is an insured person. Moreover, unpaid leave must be interrupted from the moment the maternity leave begins. The maternity allowance is paid to an employee in the amount of 100% of the average earnings (clause 1 of the Federal Law of December 29, 2006 No. 255-FZ).
If the employee does not have actually accrued wages and actually worked days in the billing period and before it, the average earnings should be calculated on the basis of the official salary, the tariff rate of the category established for the employee, the official salary, and salary (remuneration). The basis is clause 11 of the Regulations on the specifics of the procedure for calculating benefits for temporary disability, for pregnancy and childbirth to 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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On its own initiative, the employer has no right to send employees on leave without pay.
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 Administrative Code 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 Ministry of Labor of Russia (Resolution of the Ministry of Labor of Russia No. 40 of June 27, 1996). In the Labor Code of the Russian Federation, the employee's initiative is also considered a condition for granting leave at his own expense ().
A situation when employees, through the fault of the employer, cannot perform their work duties,. During downtime, employees need to be paid at least 2/3 of the average earnings (part 1
When the annual leave is used, and in life there is such a situation that the leave is needed right now, the employee can take additional days of rest by contacting the employer with an application for leave at his own expense. What this vacation is, who has the right to use it and what features it has, we will consider in this article.
Vacation you don't pay for
Vacation, which is commonly called "at one's own expense", is regulated by Art. 128 of the Labor Code of the Russian Federation. Labor law uses the concept of “unpaid leave”. It is often also called administrative.
Based on the rule of law, such leave is granted:
- for family reasons and other valid reasons;
- duration, which is agreed between the employee and the employer.
This means that the employer is not obliged to provide the employee with unpaid leave, and if the employee's departure during this period is not profitable for him or if he considers the reasons given by the employee to be disrespectful, he can deny him leave (read about the exceptions below).
Advantages and disadvantages
In addition to the fact that the vacation we are considering is not paid, the following must also be taken into account:
- for this period, insurance premiums are not paid, which means that the pension does not grow;
- if the employee falls ill during this period, the days on which he was on vacation will be excluded from sick leave payments;
- despite the fact that the maximum term has not been 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 the appointment of paid vacation is shifted by the excess amount.
However, unpaid leave also has positive aspects. All of them consist in the fact that the employee can legally receive a release 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 both a safety net for parents of often ill children, and a chance for young fathers to be close to their families in the first days of their child's life, and freedom for those who like to travel. It should only be remembered that abuse of this right can have a negative impact on the employee's reputation.
Labor legislation guarantees employees a paid vacation (annual and additional). However, the employee has the right to count not only on paid vacations: the Labor Code of the Russian Federation provides for the possibility of granting leave without pay. Only one article of the code is devoted to this type of vacation. Accordingly, employers have many questions related to its application. In what cases does the employer not have the right to refuse to grant unpaid leave? How to issue it? What is the maximum length 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, this type of vacation can be provided:- By the decision of the employer (but, having considered the reason why the employee asks for unpaid leave, and his production capabilities, he may decide to refuse to provide such leave).
- By virtue of the law (when the employer cannot refuse the employee to grant unpaid leave).
Let's say a few words about unpaid leave by the employer's decision. Part 1 of Art. 128 of the Labor Code of the Russian Federation established that for family reasons and other valid reasons, the employee, upon his written application, may be granted unpaid leave, the duration of which is determined by agreement between the employee and the employer... From this provision, it can be concluded that the prerequisites for the granting of such leave are the appropriate circumstances, a written statement of the employee and the consent of the employer.
It should be noted that the employer, when deciding to grant leave, at its discretion assesses the reasons for which the employee needs 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 the supervisory authority may side with the employee. For example, the Perm Regional Court considered the case on the recognition of the order on the application of disciplinary measures unlawful. B. applied to the employer for an unpaid one-day leave without specifying the reason why it was required. Accordingly, the employer refused to grant leave, but B. did not go to work. For this she was reprimanded. The court, having examined the materials of the case, found out the reason for the absence - the need to appear before the prosecutor's office and the court (the summons was drawn up with the relevant documents) - and declared the order to impose a disciplinary sanction unlawful (Appeal ruling of the Perm Regional Court dated 12.08.2013 in case No. 33-7452).
Of course, the court does not always take the side of the worker. If he does not show up for work after the employer refuses to grant unpaid leave, the application of disciplinary measures up to and including dismissal for absenteeism may be recognized by the court as lawful and justified (see, for example, Determination of the Moscow City Court dated 08.09.2015 No. 4g / 8 ‑8669/2015, Appeal ruling of the Omsk Regional Court dated 02.09.2015 in case No. 33-6239 / 2015).
When will it be illegal for an employer to refuse?
As we found out, in some cases the employer is obliged to satisfy the employee's application for unpaid leave. In particular, according to Part 2 of Art. 128 of the Labor Code of the Russian Federation, the employer must provide the following vacation:- participants in the Great Patriotic War - up to 35 calendar days a year;
- working old-age pensioners (by age) - up to 14 calendar days a year;
- parents and wives (husbands) of military personnel, employees of the internal affairs bodies, the federal fire service, the bodies for control over the circulation of narcotic drugs and psychotropic substances, customs authorities, employees of institutions and bodies of the penal system, who died or died as a result of injury, concussion or injury, received in the performance of military service (service) duties, or as a result of an illness associated with military service (service) - up to 14 calendar days a year;
- working disabled people - up to 60 calendar days a year;
- employees in cases of childbirth, 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 the employer has no right to refuse leave is far from exhaustive: the 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 unpaid leave to employees admitted to entrance examinations upon admission to a higher educational institution, as well as students of preparatory departments of educational institutions of higher education for passing the final certification - 15 calendar days. Slightly less - 10 calendar days of unpaid leave - must be provided by the employer 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 14 without a mother, collective agreement annual additional leaves without pay can be established at a convenient time for them, lasting up to 14 calendar days (Article 263 of the Labor Code of the Russian Federation).
In some cases, unpaid leave is given to part-time workers. So, by virtue of Art. 286 of the Labor Code of the Russian Federation, if at part-time work the duration of the 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 a leave of the corresponding duration without pay.
But not only the Labor Code defines cases when the employer cannot refuse unpaid leave: such cases can be established by other federal laws. For clarity, we present them in the table.
| Rule of law | Categories of workers | Duration |
| Federal Law of 27.07.2004 No. 79-FZ "On the State Civil Service of the Russian Federation" | Civil servants | Up to a year |
| Federal Law dated 02.03.2007 No. 25-FZ "On municipal service in the Russian Federation" | Municipal employees | Up to a year |
| Federal Law of 27.05.1998 No. 76-FZ "On the status of military personnel" | Military spouses | The part of the spouses' leave in excess of the duration of the annual leave at the main place |
| Federal Law of 09.01.1997 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 15.01.1993 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, RF and full holders of the Order of Glory | Up to 3 weeks per year |
| Federal Law of 12.01.1995 No. 5-FZ "On Veterans" | War invalids | Up to 60 days a year |
| WWII participants | Up to 35 days a year | |
| War veterans | ||
| Those who worked during the Second World War at air defense facilities, the construction of fortifications, naval bases, airfields and other military facilities | ||
| Federal Law of 12.06.2002 No. 67-FZ "On Basic Guarantees of Electoral Rights and the Right 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 of 22.02.2014 No. 20-FZ "On the election of deputies of the State Duma of the Federal Assembly of the Russian Federation" | Trustees of a political party, candidates nominated by electoral districts | For the period of office |
Note: the refusal to grant leave guaranteed by labor legislation, and the subsequent disciplinary punishment of employees who took such leave without the consent of the employer, are recognized by the courts and regulatory authorities as unlawful. So, Z. went to court with a claim against the Municipal House of Culture and Arts named after GV Kalinichenko "on reinstatement at work after dismissal for absenteeism. In the course of the consideration of the case, the court found that, on the basis of the decision of the election commission of the municipal district Z., as a proxy of the candidate for the position of the head of the district, certificate No. 1 was issued stating that she was the proxy of the candidate. The employer was informed about this.
08.08.2014 Z. received a phone call, she was informed about the need to report to the administration of the Moscow region, where she stayed from 13.00 to 18.00. On August 11, 2014 Z. submitted an explanatory note, in which she indicated the reasons for the absence and the details of the identity card of the trustee, and attached a certificate from the administration of the Moscow region. However, the MU management nevertheless dismissed Z.
By virtue of Art. 43 of Law No. 67-FZ, for the period of authority of a proxy, the employer is obliged to give proxies, at their request, unpaid leave. Since Z. was not granted such leave, even though she did not write an application, but informed the management about the need to be absent by phone, the dismissal was declared illegal: there was a good reason for leaving work - carrying out activities related to the elections, about than Z. subsequently provided a certificate (Appellate ruling of the Moscow Regional Court of 18.03.2015 in case No. 33-5980 / 2015).
For your information
The cases of granting unpaid leave can be established by collective bargaining or industry agreements. For example, the Industry Agreement on Organizations of the Federal Agency for Technical Regulation and Metrology for 2015-2017 gives a woman with a child under the age of 16 the right to one additional day off per month without pay.
Summing up the section, let's say that if the employer has provided the number of days of unpaid leave in full as determined by law, collective agreement or agreement, then upon a new request during the same year, the employer has the right to refuse such a leave to an employee of a preferential category. For example, a disabled employee received 30 days of unpaid leave in April and August 2015 (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 grant such leave and this will not be a violation of the law.
The period of unpaid leave
How long can unpaid family leave be granted? The Labor Code does not provide a clear answer to this question and does not establish restrictions. Consequently, as a general rule, such leave can last a day, a week, several months and any other period on which an agreement is reached between the employee and the employer.However, some regulations provide for a time limit on unpaid leave. For example, on the basis of paragraph 15 of Art. 46 of the Federal Law of 27.07.2004 No. 79-FZ "On the State Civil Service of the Russian Federation", the duration of unpaid leave granted to civil servants for family reasons and other valid reasons cannot be more than a year. A similar period is set for unpaid leave of municipal employees.
note
What to do when an employee has several reasons for unpaid leave, for example, an employee who is a pensioner and a disabled person, respectively, is entitled to 14 and 60 calendar days of vacation? Labor legislation does not contain an answer. We believe that in this case, the employee has the right to count only on a longer vacation.
Note that keeping records of unpaid vacations is necessary for several reasons.
Firstly, as we have already said, this will help the employer justify the refusal to grant leave to employees who, as a general rule, the employer is obliged to grant it (Appellate ruling of the Altai Regional Court of January 22, 2014 in case No. 33-502 / 2014).
Secondly, the number of days of unpaid leave is important for calculating the length of service for granting annual paid leave. Recall that according to Part 1 of Art. 121 of the Labor Code of the Russian Federation, the length of service, which gives the right to an annual basic paid vacation, includes the time provided at the request of the employee without pay, not exceeding 14 calendar days during the working year. Leave (s) without pay in excess of 14 days shall not be included in the specified length of service.
The non-inclusion of such time is reflected in 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 unpaid leave 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 03/10/2015. The duration of 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 more than 14 days - 6. Thus, the working year will start on 03/10/2015 and end on 03/15/2016.
We draw up documents
Unpaid leave is granted only at the initiative of the employee (granting such leave at the initiative of the employer - for example, in the case of a decrease in the volume of work - is a violation of labor legislation), that is, the employer needs an employee's statement. The application must indicate the reasons why the vacation is necessary so that the employer can make an informed decision, and of course, the desired dates.The employer can express agreement (disagreement) with the application by making an appropriate entry on it, for example, "I do not object", "Agreed". On the basis of such a certified statement, an order is issued to grant unpaid leave. For this, a unified form T-6 (T-6a) or a form approved by the institution is used. The order must indicate the type of vacation, the number of calendar days of vacation 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 the preferential categories for which leave must be granted, the employer can fix absenteeism and apply disciplinary measures up to and including dismissal. For example, the Leningrad Regional Court in its Ruling No. 33-3394 / 2014 of 07/03/2014 indicated that the presence of a manager's resolution on an application for additional unpaid leave does not indicate that the employee has reached an agreement with the employer on this issue, since the granting of leave must be formalized by order.
The order on 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 against signature.
If the institution employs remote employees, the registration of unpaid leave for them can take place through the exchange of 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 entered in section. VIII personal card.
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