Replacement of part of annual paid leave with monetary compensation. Annual paid vacation. Replacing vacation with cash compensation - whenever possible

07.07.2017, 22:19

An employee of the organization asked to replace the next vacation monetary compensation. The director is inclined to agree, since a large order has arrived, and every employee counts. However, a personnel specialist doubts whether it is possible to replace vacation with monetary compensation, and, if not, then what fine for replacing vacation with monetary compensation can be imposed on the organization. Our specialists will tell the personnel officer the correct answer.

Basic leave cannot be replaced

Let us say right away that monetary compensation can only be replaced by that part of the annual leave that exceeds 28 calendar days. Therefore, if an employee does not have the right to extended or additional leave, then such a replacement is not legal.

It is clear that if an employee has not been on vacation for more than a year, then he has accumulated vacation days exceeding 28 calendar days. However, they cannot be replaced with compensation. Each such leave must be used by the employee.

Only “extra” vacation days can be replaced

By law, an employee can only be replaced with monetary compensation for his additional or extended leave.

For your information
Additional leaves in accordance with current legislation are provided to certain categories of employees without fail. For example, additional leave is granted:
workers with irregular working hours;
"northerners";
Chernobyl victims;
other categories of workers.

For your information
Extended vacations are granted to certain categories of workers. For example, these include:
minor employees;
working disabled people;
employee of educational organizations;
other categories of workers.

Responsibility for violation

If, nevertheless, the employer replaces with monetary compensation a part of the annual leave not exceeding 28 calendar days, then the organization (individual entrepreneur) may be fined. The amount of the fine is (Part 1 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation):

for officials – from 1,000 to 5,000 rubles;
for individual entrepreneurs – from 1,000 to 5,000 rubles;
for an organization – from 30,000 to 50,000 rubles.

If the violation is repeated, the fine will be increased, and officials may face disqualification (Part 2 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation):

for officials – from 10,000 to 20,000 rubles. or disqualification from one to three years;
for individual entrepreneurs – from 10,000 to 20,000 rubles;
for an organization – from 50,000 to 70,000 rubles.

Every employee has the right to annual paid leave (Article 21 of the Labor Code of the Russian Federation). Is it possible to replace vacation with monetary compensation? Let's figure it out.

Replacement of vacation with monetary compensation

By general rule The duration of the annual basic paid leave is 28 calendar days (Article 115 of the Labor Code of the Russian Federation).

An employee may ask for monetary compensation to replace part of the vacation exceeding these 28 days (Article 126 of the Labor Code of the Russian Federation). This is possible if the employee has a longer vacation. For example, disabled employees are entitled to annual leave of at least 30 calendar days (Article 23 of Law No. 181-FZ of November 24, 1995).

Replacement of additional leave with monetary compensation

Some employees are entitled not only to annual basic paid leave, but also additional leave (Article 116 of the Labor Code of the Russian Federation). Such leave, for example, is entitled to employees working irregular working hours (Article 119 of the Labor Code of the Russian Federation). And, in principle, additional leave can be replaced by monetary compensation, taking into account the “28 days” rule.

For example, an employee with irregular working hours is entitled to a basic annual paid leave of 28 calendar days. He is also entitled to additional leave for irregular working hours of 3 calendar days. In total, an employee can rest 31 calendar days per working year. So, an employee can replace three calendar days with monetary compensation (31 days - 28 days).

Application for compensation for unused vacation: sample

In order for the vacation to be replaced by monetary compensation, the employee must write a corresponding application.

Such a statement might look like this:

Replacement of vacation with monetary compensation is not allowed.

As you know, there is an exception to every rule. And the legislation establishes categories of employees who are prohibited from replacing vacation with monetary compensation (Article 126 of the Labor Code of the Russian Federation). The following cannot replace paid annual leave (both basic and additional) with compensation:

pregnant women;
minor workers.

And workers engaged in work with hazardous/ dangerous conditions labor, it is prohibited to replace annual additional “harmful” leave with money.

When any leave is replaced by compensation

If an employee quits and at the time of dismissal he has unfilled vacation days left, the employee can:

or give them time off before dismissal;
or receive compensation for days not taken off (Article 127 of the Labor Code of the Russian Federation).

According to the provisions of Article 115 of the Labor Code Russian Federation the employer must provide the employee with annual basic paid leave of 28 calendar days. Certain categories of employees are granted extended basic leave (i.e., lasting more than 28 days). The Labor Code also provides for cases when replacing days of unused vacation is prohibited. Let's consider this question more details.

According to the provisions of regulations establishing labor law standards, unused days Leave may be replaced by monetary compensation in the following cases:

at the request of the employee - part of the annual paid leave exceeding 28 calendar days ();

persons employed in harmful and dangerous working conditions (Article 117 of the Labor Code of the Russian Federation);

workers with irregular working hours (Article 119 of the Labor Code of the Russian Federation);

employees working in the Far North and equivalent areas ();

athletes and coaches (Article 348.10 of the Labor Code of the Russian Federation);

persons working in representative offices of the Russian Federation abroad (Article 339 of the Labor Code of the Russian Federation);

honey. employees (Article 350 of the Labor Code of the Russian Federation);

employees who are guaranteed such leave federal laws(Part 1 of Article 116 of the Labor Code of the Russian Federation).

The following have the right to extended leave:

groups of persons defined by federal laws (Part 2 of Article 115 of the Labor Code of the Russian Federation).

It is worth remembering that for certain categories of employees, replacing annual paid compensation with monetary compensation is not allowed. Such employees include:

persons under the age of 18 (part 3 of article 126);

pregnant women (part 3 of article 126 of the Labor Code of the Russian Federation);

customs officers (clause 2 of article 35 of Law No. 114-FZ);

employees of the internal affairs department (part 3 of article 45 of the Regulations approved by Resolution of the Supreme Court of the Russian Federation of December 23, 1992 N 4202-1 “On approval of the Regulations on service in the internal affairs bodies of the Russian Federation and the text of the Oath of an employee of the internal affairs bodies of the Russian Federation”).

employees of drug control authorities (clause 105 of the Regulations approved by Decree of the President of the Russian Federation of June 5, 2003 N 613 “On law enforcement service in the authorities for control of the circulation of narcotic drugs and psychotropic substances”);

persons employed in work with harmful and/or dangerous working conditions. The exception is payments of monetary compensation for unused vacation upon dismissal, as well as for part of the annual additional paid leave exceeding its minimum duration - seven calendar days (part 3 of article 126 and parts 2, 4 of article 117 of the Labor Code of the Russian Federation);

workers exposed to radiation as a result of the disaster at the Chernobyl nuclear power plant.

Note: In accordance with Part 2 of Art. 122 of the Labor Code of the Russian Federation, the right to use vacation for the first year of work arises for the employee after 6 months of his continuous work. By agreement of the parties, paid leave can be granted to the employee before the expiration of 6 months.

Additional leave granted for work in hazardous conditions is entitled to an employee if he actually worked in such conditions for at least 11 months in a working year (paragraph 2, paragraph 8 of Instruction No. 273/P-20). If he worked less than this period, then he is granted additional leave in proportion to the time worked in such conditions (clause 9 of Instruction No. 273/P-20, Letter of Rostrud dated March 18, 2008 No. 657-6-0);

Additional leave for work in irregular working hours does not depend on the length of time worked in the working year under irregular working hours (Letter of Rostrud dated May 24, 2012 N PG/3841-6-1);

Registration of monetary compensation for vacation

To pay monetary compensation for vacation, the employer must perform the following sequence of actions:

receive a written statement from the employee;

issue an order;

enter information about replacing part of the vacation in the employee’s personal card and vacation schedule.

Note: Study leave is not related to annual paid leave, but is considered additional targeted leave related to training (Articles 173-176 of the Labor Code of the Russian Federation). Therefore, the employer does not have the right to replace the employee study leave monetary compensation (Letter of the Federal Tax Service for Moscow dated December 27, 2006 N 20-12/115069).

Payment of monetary compensation for unused vacation upon dismissal

In accordance with Part 1 of Art. 127 of the Labor Code of the Russian Federation, upon dismissal, an employee is paid monetary compensation for all unused vacation days. If the employee did not work on the day of dismissal, then the corresponding amounts must be paid no later than the next day.

Upon dismissal, monetary compensation in full size are received by employees who have worked for the employer for at least 11 months, or by employees who have worked for more than 5.5 months and were dismissed on one of the following grounds:

liquidation of the enterprise;

staff reduction;

transfer to another job at the suggestion of labor authorities;

entry into active military service;

reorganization or temporary suspension of work;

business trip to in the prescribed manner to universities, technical schools (or preparatory courses of these educational institutions);

unsuitability for work.

In other cases, compensation is paid in proportion to the time worked.

Note. In accordance with Art. 291, 295 of the Labor Code of the Russian Federation, employees hired for a period of up to 2 months, or employed in seasonal work, are paid monetary compensation upon dismissal at the rate of two working days per month of work.

When calculating the number of days of unused vacation, the length of service includes:

actual work time;

the time when the employee did not actually work, but was protected by him in accordance with labor legislation and other acts containing labor law norms, collective agreement, agreements, local regulations, the employment contract preserved the place of work, including the time of annual paid leave, non-working holidays, days off and other rest days provided to the employee;

time of forced absence due to illegal dismissal or suspension from work and subsequent reinstatement to the previous job;

the time of unpaid leave provided at the request of the employee, not exceeding 14 calendar days during the working year;

the period of suspension from work of an employee who has not undergone a mandatory medical examination through no fault of his own.

Work experience does not include:

the time an employee is absent from work without good reason, including due to his removal from work in the cases provided for;

parental leave until the child reaches the legal age.

Note: In accordance with Art. 121 of the Labor Code of the Russian Federation, vacation time without pay, not exceeding 14 calendar days during the working year, is included in the vacation period.

The final amount of compensation for unused vacation is paid based on average earnings. In accordance with Art. 139 of the Labor Code of the Russian Federation, the average daily earnings for payment of compensation for unused vacations are calculated for the last 12 calendar months by dividing the amount of accrued wages by 12 and by 29.3 (the average monthly number of calendar days).

Every officially employed citizen has a number of rights and freedoms that are protected by labor legislation. In particular, this concerns the right to a well-deserved rest or its compensation in monetary terms.

Right to compensation

According to labor legislation, replacing vacation with monetary compensation is possible if the employee voluntarily consents to this. For example, in 2016, an employee did not take his allotted vacation or part of it, thereby transferring it to 2017.

Not every employer can provide an employee with more than 28 calendar days of rest per year, so the remainder is usually compensated in cash. In fact, the unspent part of the vacation is replaced by additional payments. Article 126 of the Labor Code implies that monetary compensation is due only for that part of the vacation that exceeds the 28 calendar days established by law. For example, workers in the Far North are additionally entitled to 24 calendar days of rest. It is these that the employer can replace with a cash payment based on the average salary.

Compensation upon dismissal

Labor legislation in Article 127 clearly states that monetary compensation for unused vacation must be paid by the employer to the employee upon dismissal. The final payment includes payments for time worked, bonuses and additional funds due, and payments for vacations that were not used. The employee's right remains vacation followed by dismissal. For example, before leaving workplace, the citizen has the right to receive all the rest days due, and not financial compensation. The work experience during the vacation period is not interrupted, and the employee retains his job. It is impossible to fire him during this period of time. An employee has the right to change his mind about resigning at will by writing a corresponding application no less than 14 calendar days before the end of employment contract.

Who has a vacation of more than 28 calendar days

Vacation of civil servants

According to the law, civil servants have the right to additional leave for length of service and irregular working hours. Rest days for length of service are accrued depending on the employee’s length of service. Read more in this

In addition to workers in the Far North, there are categories of workers who are entitled to rest for more than 28 calendar days. These categories have the right to replace vacation with cash compensation in 2019 at their own request. Such specialists are:

teaching staff;
medical workers;
employees with disabilities;
scientific workers of higher educational institutions;
civil servants of the state civil service;
workers performing research work.

Each employee in this area has the right to rest 28 calendar days a year at the expense of the employer, and for the remaining days to receive compensation in cash equivalent. The employer, in turn, has the right to refuse payment, insisting on proper rest for the employee.

How to get compensation

Since the employer has the right to refuse to replace annual paid leave with monetary compensation, the employee must know exactly how to receive the funds due to him. First of all, you need to write an application addressed to the manager, which indicates the period of additional paid leave, which should be replaced by a financial payment. The employer is obliged to consider the application within three working days, and then issue an appropriate order.

Who is not entitled to compensation?

Employees employed in complex, harmful and dangerous industries and who have vacations of more than 28 calendar days do not have the right to replace additional days with financial payments. First of all, this is due to working conditions, which are difficult and harmful to health. That is why the employer has the right to refuse to provide payments for legally. As practice shows, partial compensation is paid to employees employed in hazardous production, however, in total they do not exceed seven calendar days of vacation.

How and when compensation for unused vacation is paid - see the video below:

Employees who are under 18 years of age at the time of their vacation cannot demand that their vacation be replaced with money. Article 126 of the Labor Code prohibits minors from receiving compensation in lieu of annual paid rest. The same rule applies to pregnant women going on maternity leave and employer-paid leave.

Registration of compensation

After receiving, reviewing and signing the employee’s application, the employer is obliged to issue an order for compensation for unused vacation according to the established model. The order includes a description of the period that must be replaced by a material payment, exact dates are stated in the text of the order. In addition, the deadline by which payments must be accrued in full is indicated.

How is the amount calculated?

For unused vacation, compensation is calculated based on the employee’s average salary. The total annual salary is divided into 12 calendar months, and then divided by the average number of days in one month. The amount received is the average daily wages, which is the basis for calculating compensation for unused vacation. The number of days not taken off is multiplied by the average daily wage, where the result will be the amount of payment.

You can ask a lawyer any questions you have in the comments below.

Compensation for unused vacationmay be paid to the employee upon termination of the employment contract, as well as in a number of other cases. When it is possible to receive money instead of a vacation and in what amount, we will tell you in this article.

Annual paid vacation

The state guarantees every worker a vacation period, during which the employee retains his job and position. Moreover, these rest days are paid by the employer, based on average salary employee for the past year.

The employee has the right to go on vacation after 6 months continuous work in the organization, and after 11 months the employer is obliged to provide his employee with paid rest. In the following years, the priority of going on vacation in the team is determined in accordance with the vacation schedule, which the organization must approve no later than 2 weeks before the start of the new year.

The standard leave guaranteed by labor law is 28 days. In addition, some employees have the right to an extended vacation period; for example, teachers legally rest for 45 or even 56 days. In addition, for special working conditions, some employees are granted the right to additional leave.

Leave can be granted in full (4 weeks at once) or divided into parts, with at least one of the parts being at least 2 weeks.

How is unpaid leave formed (transfer, extension of leave, recall from leave)

Sometimes life circumstances do not allow an employee to fully use the days of the scheduled rest. In this case, the vacation may be extended or postponed to another time. Vacation is extended or postponed:

If an employee falls ill while on vacation. The illness must be documented (sick leave), which means that in this case it is impossible to do without consulting a doctor.
If during the vacation the employee performed any government duties, during the period of which the law provides for the employer’s obligation to release the employee from work.
In other cases provided by law.

In these situations, the period for extending or postponing leave is determined by the head of the organization, but taking into account the opinion of the employee.

If the employee was not paid vacation pay on time or the notification about vacation was received later than the established period, he has the right to demand that the vacation be postponed to another time. Management is obliged to satisfy such a request from the employee.

In rare cases where an employee's absence from work may adversely affect the organization's productivity, the law allows annual leave to be carried forward to next year. However, the employee’s consent must be obtained for such a transfer, and vacation days must be used no later than the next year.

In case of any production necessity, management can recall an employee from vacation, but only with his consent. The unused part of the leave must be provided to the employee later in this year or added to the next vacation.

Failure to provide vacation for 2 years in a row is prohibited by the Labor Code, however, life practice shows that the part of vacation not taken off is sometimes forgotten, and legal days of rest “freeze.”

Will vacation not taken be expired in 2016-2017? What the Labor Code says

For several years, rumors have regularly arisen that soon compensation for unused vacation will not be provided, and unused days will be burned out. Is it so?

There's really nothing like it. At one time there was a period when it was allowed to replace real rest with compensation for unused vacation for any period of time, but after Russia joined the ILO convention it is impossible not to rest for more than 2 years. Even when the convention was introduced, some journalists misunderstood its content, and unverified information still begins to circulate from time to time. But neither in 2017 nor in subsequent years does the law provide for the burning of vacation days.

Cash compensation for unpaid vacation upon dismissal

When talking about compensation for unused vacation, we imagine, first of all, monetary compensation for the inconveniences and hardships caused. Let's turn to the legislation.

The Labor Code allows the exchange of a vacation period for monetary compensation for unused vacation (Articles 126 and 127 of the Labor Code of the Russian Federation), but with some restrictions.

First of all, compensation for unused vacation is discussed when an employee is dismissed. In accordance with labor legislation, upon termination of an employment contract, the employee is paid compensation for all unused vacation days.

If the employee wishes, then at his request, instead of money, he will be provided with all the days of vacation not taken off, followed by dismissal. In this case, the last day of vacation will be considered the day of dismissal. This option is only possible if the termination of the employment contract does not occur due to the employee’s guilty actions.

Since both the calculation of vacation pay when granting vacation and the calculation of compensation for unused vacation are the same, in material terms the person resigning does not win anything. Rather, here we are talking about the possibility of being legally absent from the workplace, but so that the record of dismissal in the labor record appears a little later in time than in case of dismissal with compensation for unused vacation.

As for compensation for unused vacation without dismissal, the law establishes some restrictions on monetary compensation for days of unused vacation.

Compensation for unused vacation without dismissal

Compensation for unused vacation without dismissal is covered in Article 126 Labor Code. It states that annual paid leave can be replaced by monetary compensation, but only to the extent that exceeds 28 days and upon the written request of the employee. If we are talking about adding up several annual vacations or transferring vacations, then part of each annual vacation over 28 days or any number of days from this part is subject to compensation.

From the above, the following important conclusions can be drawn.

Only those days of rest that go beyond the standard 28-day vacation are compensated. This means that if an employee has the right to only 28 days of vacation, then there is nothing to compensate beyond these days, which means that the employee must complete the days not taken off, and compensation for unused vacation is possible only upon dismissal.
If unused vacation days are summed up, but each vacation is also equal to 28 days or the unused part of a 28-day vacation, then monetary compensation for unused vacation is also impossible.
If an employee's annual leave exceeds 28 days, the excess may be replaced by monetary compensation, either in full or in part. For example, a 45-day teaching leave makes it possible to claim compensation both for 17 days (the difference between teaching and standard leave) and for any other number of days less than 17.
Compensation for unused vacation over 28 days is provided only at the request of the employee.

Labor legislation prohibits, in any case, except for dismissal payments, replacing rest days with compensation for unused vacation for the following employees:

pregnant women;
minors;
working in unfavorable working conditions.

How is compensation calculated for unused vacation without dismissal?

How is compensation for unused vacation calculated? important aspect in the issue under consideration, since it affects the material side of the relationship between the employee and the employer.

To determine the amount of compensation for unused vacation [P1] both in relation to days of rest exceeding standard vacation and upon dismissal, it is necessary to calculate the average salary of an employee for 1 day. The employee’s income that was received by him in the 12 months preceding the payment of compensation is taken as the basis. Legislatively, the calculation rules are reflected in the regulation “On the specifics of the procedure for calculating the average salary”, approved by Government Decree No. 922 of December 24, 2007.

To determine the average daily income of an employee, the income for the year must be divided by 12, and the resulting figure, in turn, divided by 29.3. Thus, the average daily earnings of an employee = D / 12 / 29.3. In this formula, D is the employee’s annual salary, 12 is the number of months in the year, and 29.3 is the value established in the regulation, which is the average number of days in each month of the year.

In the event that an employee did not work fully for any month in the accounting year, for example, due to illness, the regulation provides a clarifying formula for calculating average earnings for one day. It is equal to:

D / (29.3 × Mn + Mn), where:

D - income for the past year;

29.3 - the average number of days in each month of the year;

MP - the number of full months in the past year that the employee worked;

Mn is the number of days in partial months that the employee worked.

For example, a worker worked 10 full months of the calculation year, and was sick for 2 weeks in 2 months (that is, he worked 30 calendar days for both months). The average daily earnings in this case will be equal to:

220,000 (annual income) / (29.3 × 10 + 30) = 681.11 rubles.

After determining the average daily earnings, all that remains is to multiply the resulting amount by the number of days of unclaimed vacation, and the result will be the amount of compensation for unused vacation payable to the employee. Eg:

681.11 × 3 = 2,043.33 rubles.

How to use a sample and write an application for compensation for unused vacation

Since the calculation and payment of compensation for unused vacation is made only on the basis of a personal statement from the employee, you need to know how to write such a statement.

The law does not provide for a unified application form for compensation for unused vacation. The document is written by the employee in free form addressed to the head of the organization.

A typical sample application for vacation compensation contains following rules: in the upper right corner the name of the organization, surname, name, patronymic of the manager to whom the employee is addressing is indicated. Just below, the employee must indicate his data: Full name, position, department, personnel number. Even lower in the middle, the name of the document is indicated: statement. Next, on the red line, the employee describes his request for compensation for unused vacation.

The text must indicate:

year of work (period) for which the leave was granted;
type of leave (main or additional);
the number of days for which the employee wants to receive compensation for unused vacation.

The application must be submitted to the office, the manager’s secretary or directly to the manager, with a mandatory mark of acceptance.