Rules for granting previously unused vacation

Vacation pay amounts are determined on the basis of average earnings, which is calculated in accordance with the provisions of Decree of the Government of the Russian Federation dated December 24, 2007 No. 922.

According to Art. 129 of the Labor Code of the Russian Federation, an employee’s wages are remuneration for work. Accordingly, wages are accrued to the employee for the time he worked, i.e. for working hours

days.
Vacation pay is paid for calendar
days. That is, wages consist of the “price” of working days multiplied by their number. And vacation pay is calculated at the “price” of calendar days, and also based on average earnings. This is where the difference comes from.

For office employees with a five-day week and a salary, the situation is this: the fewer working days in a month, the “more expensive” they are. While “average earnings” remain average. Accordingly, vacations in the months with the fewest working days (January, May) are the least profitable in terms of money. So you need to clearly understand that if you want to increase the duration of the January and May holidays by adding vacation days, this trick will not be cheap.

There are, of course, companies that compensate their employees for the resulting “negative” difference on a voluntary basis (based on the terms of the employment/collective agreement, etc.). But now we are not talking about them. We tell you how vacation pay amounts are calculated using practical examples, from which it is easy to understand how much vacation pay you can expect in which month in 2021.

Legal requirements

Article 124 of the Labor Code states: you cannot work for more than 2 years without rest. And this does not depend on the employee’s wishes - the employer must literally force him to go on vacation.

We have already written that the vacation schedule (form T-7) is a binding document - this applies to both the employer and the employee. These are the norms of Article 123 of the Labor Code of the Russian Federation. In other words, if you include a workaholic employee in the vacation schedule, then he will not be able to “get out” of it. But it should be remembered that 2 weeks before the start of the vacation, the employee must be notified about it - in writing, signed. You also need to calculate vacation pay and pay it. If all these conditions are met, then there will be no claims against the employer during a labor inspection.

However, in practice, everything usually happens differently - previously ungranted leave must be issued urgently.

We calculate and pay vacation pay

The amount of vacation pay is determined based on the employee’s average earnings for the 12 months preceding the month the vacation began: payments for this period are divided by 12 and by 29.3 - the average monthly number of calendar days (Article 139 of the Labor Code of the Russian Federation).

The average daily earnings received are multiplied by the number of vacation days and paid to the employee 3 days before the start of the vacation (Article 136 of the Labor Code of the Russian Federation). The Ministry of Labor in Letter No. 14-1/OOG-7157 dated 09/05/2018 clarifies that these days are calendar days, and the first day of vacation and the day of payment of vacation pay are not included in them.

Read more about settlements with vacationers in the following articles:

• Note-calculation of vacation pay;
• Calculation of average earnings for vacation pay;
• Accounting entries for vacation pay;
• Responsibility for late payment of vacation pay;
• Draft amendments to the Labor Code of the Russian Federation on the timing of payment of vacation pay.

Last year's vacation on schedule

How to properly grant last year's leave? At the request of the employee or by inclusion in the schedule? There are supporters of both methods.

The first refer to Article 124 of the Labor Code of the Russian Federation: it states that the transfer of vacation is carried out upon application .

Download Application for transfer of leave

Another part of accountants and personnel officers believe that this does not exclude the need to include “overdue” vacation in the schedule. After all, the employee may not write a statement, and then there will be no other grounds to send him on leave.

Article 124 deals with a situation where the employer did not warn the employee 2 weeks in advance and did not give him vacation pay. In this case, indeed, the employee should receive a leave application.

We keep accounting records of vacations

Operations for the accrual and payment of vacation pay are subject to the accepted laws of double entry in accounting accounts. Transactions are compiled on account 70 “Settlements with personnel for remuneration” with analytics for each employee:

The accounting policy of an enterprise may provide for the formation of a reserve for upcoming vacations: the costs of paying vacation pay in this case “accumulate” with a given frequency and are characterized by uniform distribution.

The vacation reserve involves the use of account 96 “Reserves for future expenses”:

For more information on accounting for vacation pay, read our articles:

• Accounting entries for vacation pay;
• Vacation reserve in accounting;
• Vacation reserve in tax accounting.

Current and overdue leave: what is the frequency?

What kind of vacation should be provided first - the one due in the current year or for the previous period? And here in practice 2 approaches are used:

1. Current leave is granted first , since it is due annually. The possibility of such an approach is confirmed by Rostrud’s letter No. 473-6-0 dated March 1, 2007, which states that there are no provisions in the Labor Code for granting vacations in chronological order. Therefore, there is no violation in going on “current” vacation first.
2. Last year's leave is granted first . If several of them have accumulated, for example, over the period since 2021, then the sequence is as follows: vacation for 2021, then for 2021, and lastly - for the current 2021. This does not contradict the above-mentioned letter from Rostrud; the requirement of Article 122 of the Labor Code of the Russian Federation to provide leave this year is also being fulfilled. In addition, in this case the employer takes steps to reduce the scope of its violation.

The choice remains with the employer - it should be reflected in an order or other local act.

First well-deserved rest

Employees who have changed jobs often ask HR officers when they can take vacation for the first time. The first time you can write an application in accordance with Art. 122 of the Labor Code of the Russian Federation, provided that the citizen has been working at one enterprise for more than six months. Thus, there is a rule: you must work at a new enterprise for at least six months before you can expect to rest at the employer’s expense. But there are exceptions to it: some categories of workers have the opportunity to rest before the expiration of this period, in particular citizens under 18 years of age.

How long can you not go on vacation?

Every employee can take advantage of the right to paid vacation after six months of working in the company. According to the provisions of current legislation, the standard duration of vacation is at least 28 days . In the event that during the first year of work an employee did not go on vacation, the rest days are automatically transferred to the next year, but they never expire.

Compliance with the vacation schedule is mandatory for both the employee and the employer. An employee does not have the right to unilaterally refuse to comply with the vacation schedule approved by the employer. An employee’s refusal to take regular leave can be considered a violation of labor discipline, which entails disciplinary action.

The responsibilities of the organization’s HR department include tracking the duration of the required vacation using employees’ personal cards and notifying the company’s management about cases when an employee has not taken vacation for a long time. For its part, the company’s management must take measures to ensure that the employee has the opportunity to take advantage of the days of paid rest allotted to him.

For those who are on maternity leave

Scheduled leave as a break from work and maternity leave are different, unrelated periods. They are provided for different reasons, have different durations (28 and 140 days on average), and payment for such periods is made according to different rules. Every employee is entitled to annual rest of 28 calendar days after six months of work at one enterprise; a woman cannot be limited in this right. Maternity leave and parental leave are provided regardless of working a certain period of time before pregnancy.

Length of overdue leave

Let's say an employee hasn't had a vacation for 4 years. How long can his vacation last? What if he rests for the accumulated period in a row - and this is more than 100 days?

Employers in such a situation are sometimes afraid to provide such a long vacation. Meanwhile, this is exactly the best way to reduce the risk of receiving a claim from the labor inspectorate. You can safely send an employee on vacation for the entire period - this does not contradict the Labor Code.

A child’s illness is not a reason to extend a parent’s vacation

If an employee falls ill during his vacation, then it should be extended or the rest days transferred to another time (by agreement with the employee). However, if the illness overtakes the child, then the parent’s leave is not extended, because such a right is not enshrined in the Labor Code of the Russian Federation.

However, due to its financial capabilities, the employer has the right to extend vacation in such a situation, if this is enshrined in a local act.

Editor's note:

Similar conclusions are contained in the Letter of Rostrud dated 06/01/2012 No. PG/4629-6-1.

Does unused vacation expire?

According to the provisions of the Labor Code of the Russian Federation, which regulates the rules for granting employees the next vacation, if during the reporting period the employee did not fully exercise the right to the next vacation, then next year he has the right:

• Take advantage of the right to take an unpaid vacation, and then, by writing a separate application, go on vacation at the expense of the vacation for the new period;
• Combine unpaid vacation with the vacation period for the new reporting period.

If an employee resigns , but on the date of termination of the employment relationship he has unused vacation days, then he has the right to pay off all accumulated vacation before the date of termination of the employment contract. Otherwise, the employee must be paid monetary compensation.

One way or another, annual leave does not expire; it is retained by those who continue to work in the organization and by those who quit.

Another situation occurs when there is a reorganization of the company or a reduction in staff in the event of termination of the company’s activities:

• Employees can exercise their right to take their allotted vacation days before the procedure for changing the company’s status begins;
• Employees can exercise their rights to receive monetary compensation for unused vacation;
• If none of the above methods were used, the right to leave is canceled.

ATTENTION ! In the case of additional leave, the rule comes into force according to which the employee has the right to either take advantage of the right to rest or receive 100% monetary compensation for them.

When going on maternity leave, the employee has the right to take another vacation until she goes on sick leave, or after canceling the certificate of incapacity for work issued for pregnancy. Another option would be to cancel unused leave after the woman returns from maternity leave.

IMPORTANT! There are no statutes of limitations for such vacations, in accordance with the provisions of the current legislation of the Russian Federation.

If an employee does not exercise his right to vacation, it continues to accumulate, which threatens the employer with penalties.

We calculate and pay taxes and contributions from vacation pay

Vacation pay, as well as compensation for unused vacation, are equal to payments within the framework of the employment relationship and are subject to personal income tax and insurance contributions.

Personal income tax on vacation pay is transferred to the budget no later than the last day of the month in which the employee received vacation pay (clause 6 of Article 226 of the Tax Code of the Russian Federation) - see more details:

• Vacation pay in 6-NDFL;
• Recalculation of vacation pay and 6-personal income tax;
• Carryover vacation pay in 6-NDFL.

Insurance premiums are paid before the 15th day of the month following the month of accrual of vacation pay (clause 3 of Article 431 of the Tax Code of the Russian Federation) - see more details:

• Insurance contributions from vacation pay;
• Deadline for payment of insurance premiums from vacation pay;
• 0% rate on contributions for SMEs due to coronavirus;
• RSV sample and control ratios.

Is unused vacation beneficial to the employer?

For employees, missing another vacation means losing the opportunity to rest. This situation may threaten the employer with a dispute with the labor inspectorate. If the employee does not have the opportunity to exercise his right to another vacation next year, then the employer will be subject to liability measures for violation of labor law (Article 5.27 of the Code of Administrative Offenses of the Russian Federation), namely:

• An organization can be fined from 30 to 50 thousand rubles;
• The organization's work may be suspended for up to 90 days.

ATTENTION! The employee does not bear any responsibility for unused vacation! All responsibility automatically falls solely on the employer!

It should be noted that for an organization, the fact that employees are accumulating vacations is an unfavorable sign. This factor may become a reason for inspections by the labor inspectorate, and also have an impact on the financial factor.

If a case of prolonged non-use of vacation by any employee is detected, the labor inspectorate will have a legal basis to investigate and determine the reasons for this event. The management of the organization will have to prove that this factor did not arise through the fault of the employer, and also prove that there were no artificial obstacles created when applying for leave.

Even if there is no evidence of the employer’s fault in having one or more employees have unused vacations for 2 or more years, a fine will be imposed on the company. From the financial side of the organization, it is unprofitable to allow vacation accrual for the following reasons:

• In the event that a person wants to go on vacation for 2 years or more at once, the employer will be forced to look for reserves to redistribute his work functions to other employees;
• In the event of termination of the employment relationship, the employee may demand monetary compensation for unused vacation days, and this can become a significant financial burden for the enterprise;
• If a violation provokes an inspection by the state labor inspectorate, the organization will be included in the list of violators of labor law provisions, which will entail additional material costs to pay off fines.

Article 120. Calculation of the duration of annual paid leave

The duration of the annual main and additional paid leaves of employees is calculated in calendar days and is not limited to a maximum limit. Non-working holidays falling during the period of annual main or annual additional paid leave are not included in the number of calendar days of leave.

(as amended by Federal Law No. 90-FZ of June 30, 2006)

When calculating the total duration of annual paid leave, additional paid leave is added to the annual main paid leave.

Replacing vacation with compensation

Article 127 of the Labor Code of the Russian Federation provides for situations in which an employee has the right to demand payment of compensation amounts for unspent vacation days. For example:

• the employee has already submitted a letter of resignation and intends to work the remaining days as usual;
• the duration of vacation exceeds the standard (28 calendar days).

Annual additional paid leave (over 28 days) is provided to employees engaged in work with harmful and (or) dangerous working conditions, employees with a special nature of work, employees with irregular working hours, employees working in the Far North and equivalent areas , as well as in other cases provided for by the Labor Code of the Russian Federation and other federal laws.

Citizens from this category, according to the law of the Russian Federation, also have the opportunity to replace additional leave with monetary compensation; a written application is sufficient for this.

Download a sample application for compensation for unused vacation

Sample application for compensation for unused vacation

Another vacation cannot be replaced by material benefits. As an exception, the Labor Code distinguishes dismissed persons. They can initiate payment for the entire duration of vacations not taken.

Personnel services and the management of the employing enterprise do not have the right to approve an application to replace vacation with financial compensation if the applicant is:

• pregnant employee;
• minor employee;
• an employee engaged in work with harmful and (or) dangerous working conditions.

Vacation at your own expense

A citizen has the right to take several (the maximum limit is defined only for civil servants - 1 year) days at his own expense. Such time off is provided only upon application and in agreement with the administration, except for the following cases:

• WWII participants have the right to take an additional 35 calendar days off per year;
• working age pensioners - 14;
• working disabled people - 60;
• parents and wives (husbands) of military personnel, firefighters, etc. who died in the line of duty - 14.

In addition, the manager is required to sign an application for 5 days at his own expense in the event of the birth of a child, registration of marriage, or death of a close relative.

Application for leave

An application for regular leave is a document that allows an employee to go on a legal vacation subject to all the rules prescribed in the labor legislation of the Russian Federation. Such a document is usually drawn up in two cases:

• the employee goes on another paid vacation;
• the employee expressed a desire to receive extraordinary leave (the reason may be study, pregnancy or other personal circumstances).

If you want to go on an unscheduled vacation, it is advisable to document its necessity ; otherwise, the employer may refuse, citing the subordinate’s indispensability in the workplace.

If an employee goes on vacation in accordance with the schedule, it is not necessary to submit an application. If the schedule indicates only a month, then writing an application for the next vacation is mandatory. Such an application must be submitted no later than 2 weeks before the start of the vacation . This is due to the fact that the accounting department needs time to calculate and accrue vacation pay.

An application for the next vacation is written by an employee, as a rule, in any form. There are no standard templates for writing an application for regular leave for an employee.

The application can be written by hand or typed on a computer. The main condition is that it must have a “living” signature on it.

Download Leave Application

Sample application for leave

We check the employee’s length of service for granting leave

An employee’s right to leave arises six months from the date of employment with a given employer (Article 122 of the Labor Code of the Russian Federation).

Leave for up to 6 months of service is given:

Read everything regarding the determination of length of service that gives the right to the next paid leave in the articles:

• For what year is leave granted: calendar or working;
• Working year for vacation in advance;
• Is downtime due to the employee’s fault included in the vacation period;
• Is administrative leave included in the length of service for annual paid leave?

What to do with vacation on July 1

The President declared July 1 as voting day on amendments to the Constitution. He was not working. Earnings for this day must be accrued in double amount. The reason is that the law applicable on holidays applies on this date.

There is also a payment option in the usual, single amount, but with an unpaid day off.

Election day does not affect working hours, so there is no need to extend vacation for it.

Those employees who will not work on the 1st must receive their full salary for July.

If local company regulations establish additional wages for piece workers on holidays, this procedure also applies to payment for their activities on 07/01/2020.

How to calculate length of service for main leave if there was a month of absence for family reasons

An employee of the company took vacation at his own expense twice for a total duration of 30 days. How to take this month into account when calculating length of service for the purpose of annual basic leave?

By virtue of Part 1 of Art. 121 of the Labor Code of the Russian Federation , the maximum duration of leave at one’s own expense, which is taken into account in the length of service required for the main leave, cannot exceed a 14-day period.

Days beyond this duration (in the case under consideration - the remaining 16-day period) are not included in the length of service. The end of the working year must be shifted to the period of absence of the worker, deleted from the length of service.

In this case, in the vacation order (form No. T-6, form according to OKUD 0301005), in the column responsible for the working period, the date is entered in the following order. For example, instead of “from June 1, 2021 to May 31, 2020,” to “from June 16, 2021 to June 15, 2021.”

It should be taken into account that the period of downtime is also included in the length of service.

More details in the letter of the State Labor Inspectorate in Moscow dated 06/04/2020 No. 77/10-20669-OB/18-1299.

What bonuses are included in the calculation of average earnings when calculating vacation pay?

Question. What bonuses are included in the calculation of average earnings for calculating vacation pay? Over the past year, our organization paid: a bonus based on work results for 6 months (payment in July 2021) and a bonus based on work results for the year (payment in January 2019). Also, some employees were paid a bonus based on the results of their work for the month.

Answer. When calculating average earnings, various types of bonuses can be taken into account. To do this, they must be provided for by the organization’s remuneration system, fall within the appropriate billing period (with the exception of the annual bonus, which is taken into account regardless of the accrual period), and must also be taken into account once on each basis (or for one indicator).

As is known, to pay for the period while on vacation, amounts are taken from the calculation of average earnings, the general procedure for calculating which is contained in Art. 139 Labor Code of the Russian Federation. In accordance with this article, to calculate the average salary, all types of payments provided for by the remuneration system and applied by the relevant employer are taken into account, regardless of the sources of these payments.

Similar provisions are contained in Decree of the Government of the Russian Federation dated December 24, 2007 No. 922. In paragraphs. “n” clause 2 indicates the need to include in the calculation bonuses and remunerations provided for by the remuneration system.

These standards establish the main criterion for answering the question of whether certain types of bonus payments should be included in the calculation of average earnings. That is, in order to account for bonuses, they must initially be provided for in labor, collective agreements or the organization’s local regulatory act on bonuses. In other words, payments must be provided for by the current wage system.

The second important criterion for taking into account the bonus in calculating average earnings: it must be actually accrued in the billing period (clause 15 of the Decree of the Government of the Russian Federation of December 24, 2007 No. 922). An exception is made for the annual bonus; the accrual period does not matter for it.

In accordance with clause 15 of the Regulation on the specifics of the procedure for calculating average wages No. 922, when determining average earnings, bonuses and remunerations are taken into account in the following order:

• monthly bonuses and rewards - actually accrued in the billing period, but not more than one payment for each indicator of each month of the billing period;
• bonuses and remunerations for a period of work exceeding one month - actually accrued in the billing period for each indicator, if the duration of the period for which they are accrued does not exceed the duration of the billing period, and in the amount of the monthly part for each month of the billing period, if the duration of the period for which they are accrued exceeds the duration of the billing period;
• remuneration based on the results of work for the year, a one-time remuneration for length of service (work experience), other remunerations based on the results of work for the year, accrued for the calendar year preceding the event, regardless of the time the remuneration was accrued.

The third essential point follows from the provisions of clause 15 - this is the one-time accounting of bonuses for each of the indicators for which they were accrued.

It should be noted that if the bonus period does not fall completely into the calculation period, then, according to the clarifications of the Ministry of Health and Social Development of the Russian Federation in letter No. 2337-17 dated June 26, 2008, the bonus can be taken into account in its entirety when calculating vacation pay only if it is accrued for the months that fall within the calculation period. period. Otherwise, it must be distributed in proportion to the time worked in the billing period.

To calculate average earnings, social payments and other payments not related to wages (material assistance, payment for the cost of food, travel, training, utilities, recreation, etc.) are not taken into account.

It is possible to provide extraordinary leave without returning from a business trip

Some categories of employees have the right to demand that the employer provide annual leave at a time convenient for them. For example, according to Article 262.2 of the Labor Code of the Russian Federation, from the end of 2021, these include parents of three or more children under 12 years of age.

An employee cannot be on annual leave and a business trip at the same time, according to Art. 166 TK . The sudden departure of an employee on vacation also complicates his obligation to report travel expenses within three days upon returning from a business trip.

However, Rostrud believes that financial issues can be resolved within three days after the employee returns to work after vacation. Moreover, labor legislation does not prohibit providing staff with time to rest immediately after a business trip and without a gap between them.

Please note that in this case the employer is not obliged to compensate for the costs of a return ticket, and even if he does this out of his own generosity, he will not be able to consider such expenses as economically justified.

It will not be difficult for inspectors to verify that an employee has returned from a business trip. It is enough to check the dates of his arrival on the ticket and the end of the official trip in accordance with the order. The decision to grant leave will be additional confirmation of this.

More details in the letter of Rostrud dated January 24, 2020 No. PG/37456-6-1.

How to calculate vacation pay

Contract duration: 2 months or more (non-seasonal work)

For a “fixed-term” employee whose contract is concluded for two months or more (and the work is not seasonal), vacation pay should be calculated in the same way as for an employee with whom an open-ended employment contract has been signed. Namely: first you need to calculate the average daily earnings, and then multiply it by the number of calendar days of vacation (for more details, see “Crib sheet for calculating salaries, vacation pay and sick leave”).

Example 1

The employment contract with the employee Kuptsov was concluded for a period of 12 months (from August 1, 2021 to July 31, 2021). During this period, Kuptsov received a monthly salary of 40,000 rubles. Kuptsov had no vacations, sick leave or absenteeism.

From August 1, 2021, Kuptsov was granted leave of 28 calendar days followed by dismissal. The accountant determined that the calculation period for calculating vacation pay is the period of time from August 1, 2021 to July 31, 2018. During this time, Kuptsov earned 480,000 rubles (40,000 rubles x 12 months). Average daily earnings are 1,365.19 rubles (480,000 rubles: 12 months: 29.3). Kuptsov's vacation pay amounted to 38,225.3 rubles (1,365.19 rubles x 28 days).

Contract duration is up to 2 months (or seasonal work)

As mentioned above, if an employment contract is concluded for a period of seasonal work, or for a period of up to two months, leave is granted at the rate of two working days for each month of work. In this case, the average daily earnings is the accrued salary divided by the number of working days according to the calendar of a six-day working week (Article 139 of the Labor Code of the Russian Federation). This value must be multiplied by the number of working days of vacation.

Example 2

The employment contract with employee Barinov was concluded for a period of seasonal work, which lasted three months (from July 1 to September 30, 2018). During this period, Barinov received a monthly salary of 32,000 rubles. Barinov had no vacations, sick leave or absenteeism.

From October 1, 2021, Barinov was granted leave of 6 working days (3 months x 2 working days) followed by dismissal. The accountant determined that the calculation period for calculating vacation pay is the period of time from July 1 to September 30, 2021. During this time, Barinov earned 96,000 rubles (32,000 rubles x 3 months). The number of working days according to the six-day working week calendar was: in July - 26, in August - 27 and in September - 25. Total: 78 workers. days (26 working days + 27 working days + 25 working days).

The accountant determined that Barinov’s average daily earnings are 1,230.77 rubles (96,000 rubles: 78 working days). Vacation pay amounted to 7,384.62 rubles (1,230.77 rubles x 6 working days).

Calculate salary and vacation pay taking into account all current indicators