Vacation is cancelled.

The project is in full swing, deadlines are running out, the team is working to the limit of its capabilities, success is already close, and then... the time comes for another paid vacation for an employee who cannot be replaced within the framework of the project... Is this a familiar situation? Many employers are faced with the fact that vacations come unexpectedly and at the wrong time. And we are ready to do anything to delay the rest the right employees. The first thing that seems obvious is replacing vacation with monetary compensation. And everyone seems to be happy. The work continues, the employee can afford a vacation next time, and now receives a good increase in salary. But is it legal? And are there other ways out? Let's look at the Labor Code.

Can an employee work without vacation?

There are also professions and categories of citizens entitled to extended leave:

• Teachers (teachers).
• Medical workers.
• Athletes and coaching staff.
• Workers of the Far North.

For example, if an employer provides 30 calendar days of vacation annually, you can offer compensation to the employee for 2 of them.

Or, if in production the employee is entitled to standard basic leave and an additional 14 days, of which 7 are legally required for this industry, 7 days can be compensated with money. Please note that if an employee receives more vacation in the current year than the minimum required by law by transferring last year’s vacation, the difference cannot be replaced with compensation.

If compensation is the employee’s initiative, the employer has the right to refuse and send the employee on leave. If the replacement is initiated by the employer, the employee has the right to disagree.

How to document vacation compensation in cash

To correctly compensate for part of the vacation, you need to perform the following steps in order.

• If the replacement is initiated by the employer, you need to draw up a free-form report indicating the reasons why there was a production need to replace part of the leave. It is compiled by the production manager, department head or the employee’s immediate supervisor.
• Next, you need to notify the employee in writing against signature and obtain his consent in writing.
• If an employee requests compensation, he must draw up a written application in free form (sample).
• Next, you need to draw up an order for payment of compensation and familiarize it with the employee against his signature (sample).
• The HR specialist must make a note on the employee’s personal card, and also make clarifications in. In these documents you need to refer to the number of the corresponding order.
• Pay compensation to the employee via cash register or transfer to a bank card.

If the process is completed correctly, the labor inspectorate should not have any comments in the event of an inspection.

Only that part of the annual leave that exceeds 28 calendar days can be replaced with monetary compensation. Such an excess is possible if the employee is entitled to additional or extended leave.

In particular, employees are entitled to extended leave educational organizations preschool, primary, general and secondary education.

Thus, you can pay compensation to an employee only for unused vacation days exceeding 28 “mandatory” days.

Example

In 2014, the organization’s accountant A.S. Glebova has the right to:

Basic leave lasting 28 calendar days;

Additional leave for irregular working hours lasting 3 calendar days.

The total duration of Glebova’s annual paid leave in 2014 is 31 calendar days (28 days + 3 days). In 2014, with the consent of the administration, she can replace part of the vacation lasting 3 calendar days with compensation.

Two ways to replace vacation with compensation

First way. Formalize the dismissal of the employee. Upon dismissal, an employee who has not used his right to vacation is entitled to monetary compensation for all unused vacations (Article 127 of the Labor Code of the Russian Federation, paragraph 28 of the Rules on regular and additional vacations dated April 30, 1930 No. 169). When calculating compensation associated with the dismissal of an employee, take into account all his main and additional unused vacations for the entire time he worked in the organization (Article 127 of the Labor Code of the Russian Federation). An employee's right to compensation does not depend on the reason for his dismissal. Moreover, it does not matter whether the employee is hired again by the same organization after some time.

Therefore, to pay compensation, you can first fire an employee and then hire him again (for example, a week later). Neither the Labor Code of the Russian Federation nor the Russian Federation require any explanations to be given in this case. An organization's personnel decisions are its internal matter. However, if necessary, the reason for such actions can be explained as follows: it was not possible to hire another instead of the dismissed employee, or the employee changed his mind and decided to return.

Second way. Send an employee on weekend leave until he or she completes any unused vacation days. Only non-working days are not included in the number of calendar days of vacation and are not paid. holidays(Article 120 of the Labor Code of the Russian Federation). Thus, periods that fall on weekends are included in the number of calendar days and are paid. Including in the case when an employee requests leave for two calendar days - Saturday and Sunday. Labor legislation does not prohibit doing this. The only restriction: at least one of the parts of the divided vacation must be at least 14 days. The employee can use the remaining days as he pleases. If the administration of the organization does not object, then each week he has the right to use only a few days of vacation from the remaining half. This procedure for dividing annual leave into parts is provided for in Article 125 of the Labor Code of the Russian Federation.

This method has another option. If an employee goes on vacation for a week or two and does not plan to use the entire vacation or has accumulated vacations from previous years, it is more profitable for him to indicate in the application that he takes vacation not from Monday to Sunday, but from Saturday of one week to Sunday is different. For example, an employee plans to take a vacation for two weeks, from February 6 to February 19, 2014. Then in the application it is better for him to indicate: “I ask you to provide me with the next annual paid leave for the period from February 4 to February 19, lasting 16 calendar days.” In this case, the employee will receive more vacation pay.

At the same time, you need to remember that the organization is obliged to provide annual leave to employees (Part 1 of Article 122 of the Labor Code of the Russian Federation). Vacation can be transferred to the next year only for operational reasons: if the provision of vacation will adversely affect the work of the organization (Part 3 of Article 124 of the Labor Code of the Russian Federation). It is prohibited not to provide vacation for more than two years in a row (Part 4 of Article 124 of the Labor Code of the Russian Federation).

I have a question

Is it possible to pay compensation to an employee for unused additional leave if the first main paid leave has not yet been provided or has been partially provided. Additional leave is granted for working on irregular working hours.

Yes, you can.

The organization has the right to provide the first annual paid leave to the employee in advance (even if he did not work for the required period of six months) (Article 122 of the Labor Code of the Russian Federation). When calculating the total duration of annual paid leave, additional paid leaves are summed up with the annual main paid leave (Article 120 of the Labor Code of the Russian Federation). At the same time, the Labor Code of the Russian Federation does not make the possibility of granting additional leave dependent on whether the employee has taken the main leave or not.

Employees with irregular working hours are required (by law) to be provided with annual additional paid leave (Articles 116, 119 of the Labor Code of the Russian Federation). Eligibility additional days rest arises for the employee along with the right to receive basic paid leave (clause 14 of the Rules on regular and additional leaves of April 30, 1930 No. 169).

Part of the annual paid leave exceeding 28 calendar days, upon a written application from the employee, can be replaced by monetary compensation (Article 126 of the Labor Code of the Russian Federation). Moreover, such a replacement is a right, not an obligation of the organization. In the situation under consideration, this part is actually equal to the duration of the annual additional paid leave for irregular working hours. The organization has the right to pay this amount to the employee in the current working year, including even before the provision of the first main paid leave.

Prohibition of compensation

Vacation cannot be replaced by monetary compensation for the following categories of employees:

• for pregnant women - regarding the main and any types of additional leave;
• employees under the age of 18 - in terms of basic and any types of additional leave;
• employees engaged in heavy work and work with hazardous working conditions - in terms of additional leave of a minimum duration of seven calendar days for work in the specified conditions. However, if the additional leave for harmful or dangerous working conditions exceeds the minimum duration, that is, eight calendar days or more, then the days of excess can be replaced with monetary compensation. In this case, the procedure, size and conditions of such replacement must be established in the relevant industry or inter-industry agreements or in a collective agreement;
• customs officials;
• drug control officials;
• employees of internal affairs bodies;
• employees of other government agencies, if this is directly established by law (orders of the relevant government agencies).

Documentation

If an employee decides to replace part of the vacation with monetary compensation, he must write a statement (Article 126 of the Labor Code of the Russian Federation).

Attention!
A working employee’s main vacation cannot be compensated with money, even if he wants it.

The decision to pay compensation for unused vacation not related to the dismissal of an employee is made by the administration of the organization. The organization has the right to pay such compensation, but is not obliged (letter of the Ministry of Labor of Russia dated April 25, 2002 No. 966-10).

An application to replace vacation with monetary compensation may look like this:

Director of "Alpha"
A.V. Lvov
from the cashier
A.V. Dezhnevoy

STATEMENT

I ask you to replace part of my vacation (three calendar days) exceeding 28 calendar days with monetary compensation.

Dezhneva/A.V. Dezhneva/

For the purpose of rational use by employees of the days of annual paid leave due to them, and especially long-term ones, and also taking into account the needs modern practice The Labor Code includes a provision allowing the replacement of part of the annual leave with monetary compensation.

In accordance with Part 1 of Art. 126 of the Labor Code can be replaced with monetary compensation only for that part of the vacation that exceeds 28 calendar days, and only if the employee himself requests such a replacement and the employer does not object to this. Moreover, the employee’s request to replace part of the vacation with monetary compensation must be expressed in writing (in an application).

It should be borne in mind that when summing up annual paid leave or transferring annual paid leave to the next working year, monetary compensation can replace a part of each annual paid leave exceeding 28 calendar days, or any number of days from this part. For example, an employee is granted vacation for 2 working years. The total duration of vacation is 56 calendar days. In this case, replacing part of this leave with monetary compensation cannot be made, since for each working year the duration of leave does not exceed 28 calendar days. In such a situation, the employee must be provided with the entire accumulated vacation in kind, i.e. 56 calendar days.

This provision of the law is based on the main purpose (purpose) of annual basic leave, as well as the general provisions of the Labor Code regulating the rules for granting annual leave.

According to Art. 2 of the Labor Code, basic paid leave is provided to employees annually in order to ensure their right to rest. The duration of this rest cannot be less than 28 calendar days per year (Article 115 of the Labor Code). Transferring vacation to the next working year is allowed only in exceptional cases when the provision of vacation in the current working year may adversely affect the normal course of work of the organization (Part 3 of Article 124 of the Labor Code). Thus, as follows from the content of the above norms, leave of at least 28 calendar days must be provided to the employee as general rule, for each year he worked.

Part 3 Art. 126 of the Labor Code provides for a certain category of employees for whom the replacement of vacation or part of it with monetary compensation is not allowed, including at their written request.

These workers include: pregnant women and workers under 18 years of age. They must be granted annual paid leave (including basic annual leave and all additional annual paid leave) in kind annually.

Some restrictions on replacing annual leave with monetary compensation are also established for workers engaged in heavy work and work with harmful and (or) dangerous working conditions. They cannot be replaced with monetary compensation only by annual additional leave for work under the specified conditions. This leave must be granted in kind only. As for annual basic leave and other annual additional leave (in addition to additional leave for work with harmful and (or) dangerous working conditions), their replacement with monetary compensation can be made according to general rules, established by Parts 1 and 2 of Art. 126 TK. For example, an employee is granted annual paid leave of 42 calendar days. Vacation consists of: basic annual leave - 28 calendar days; additional annual leave for multi-shift work - 6 calendar days and leave for work in hazardous conditions - 8 calendar days. Upon written application of the employee, monetary compensation in in this case Part of the vacation can be replaced, amounting to 6 calendar days.

Yu. P. Orlovsky, A. F. Nurtdinova, L. A. Chikanova

From the book: 500 topical questions on the labor code

People are interested in how vacation is replaced with monetary compensation. Every accountant knows that upon dismissal, rest days that a person did not take off are paid. You can also receive monetary compensation for an entire vacation and continue working. But this is done in exceptional cases. Therefore, when submitting an application, the employer has every right to refuse the employee.

Is it possible to replace vacation with monetary compensation?

Replacing annual paid leave with monetary compensation is usually an employee initiative. The employer must clearly know the circle of people to whom payments in lieu of vacation are prohibited. This:

• pregnant women;
• persons under 18 years of age;
• workers who were exposed to radiation from the Chernobyl nuclear power plant;
• people working with harmful substances.

But there are exceptions here too. A Chernobyl employee is paid for 7 calendar days, no more. But if the worker is not on this list, then he may not be denied payment for unused additional leave.

How many days can an employee be given as replacement?

The Labor Code of the Russian Federation does not regulate a certain number of days provided to an employee. But no one has the right to completely replace vacation. In 126 art. Part 1 of the Labor Code of the Russian Federation states that the replacement of annual paid rest should not exceed 28 days. The administration draws up an order to replace part of the vacation with monetary compensation. Thus, if a worker is provided with additional rest or extended main leave by an enterprise, he can be paid compensation.

Employees who are required to take extended leave and its length:

• persons under 18 years of age - 31 calendar days;
• disabled people - 30 days;
• people working in hazardous conditions or with hazardous substances - 7 days;
• workers with a different nature of activity - the period is determined by the resolution of the Labor Code of the Russian Federation;
• workers with an irregular number of working hours - 3 days;
• workers of the Far North - 24 days;
• people who were at nuclear tests at the Semipalatinsk test site - 14 days.
• people who were exposed to radiation during the liquidation of the consequences of the Chernobyl accident - 14 days.

If the company’s employees do not fall under the above list, the owner can add rest days himself, he has the right to do so. Then it will be possible to talk about the case of replacing vacation with monetary compensation.

If a situation occurs that an employee did not use annual leave in one year and transferred it to the next, then he will not be able to replace it with money, since only extended leaves are subject to this procedure.

Let's look at an example. Employee Sokolov works at the company. He got a job on November 11, 2014. On November 10, 2015, he took 21 days of unused vacation, and on November 10, 2016, he took another 26. In total, he still has 9 days of rest left. Is it possible to make a replacement? No. Money is paid only to the employee who has more days of rest (at least 31 days).

Procedure for replacing vacation with money

How is an employee's annual leave replaced with a certain amount of money? Replacing vacation with compensation must be accompanied by a corresponding application from the employee, making changes to the employee’s personal file, and replacing vacation in the existing schedule.

Let's look at the replacement procedure in more detail:

In the vacation schedule, you also need to make changes to replace it with money. In this case, indicate the number of days of rest and order details.

You can calculate how much approximately will be paid to a person who has not used annual paid time off on your own. To do this, just use simple formulas for calculating vacation pay. That is, the average daily earnings must be multiplied by the number of calendar days to be replaced.

The procedure for calculating vacation pay is established by Art. 139 Labor Code Russian Federation.

So, if the subordinate worked billing period completely, then the amount that exists is in fact divided by 12 and multiplied by 29.3. 29.3 is the average number of days in the billing month.

If a person went on annual vacation or was on sick leave, then the mathematical algorithms become a little more complicated. After all, it is possible that a person could take time off from work for family reasons or there were other conditions.

So, the number of fully worked days of the month is calculated and multiplied by 29.3. Next, the number of unworked rest days is determined. To do this, you need to divide 29.3 by the number of days in an incompletely worked month and multiply by the number of calendar days worked. It is possible that there will be several such months. In such a situation, unworked days are counted for each month. Then the total number of calendar days with average earnings is calculated. To do this, simply add up the days worked and unworked. Finally, average earnings are calculated. To do this, the total amount of payments is divided by the number of calendar days.

After all the manipulations, the value of average earnings is multiplied by the number of vacation days for replacement and the desired result is obtained.

It is better to pay compensation in the coming days or with wages, since the Labor Code of the Russian Federation does not stipulate payment terms.

Replacement of study leave days with cash equivalent is prohibited.

What are the conditions of an order for compensation in lieu of rest? Payment of compensation for a standard rest of 28 days is prohibited; only an extended rest can be replaced. Otherwise, the manager will pay a fine of 1 to 5 thousand rubles, and the organization - from 30 to 50 thousand rubles. They may also suspend production for 90 days.

According to the rules, a worker's compensation is his earnings. Therefore, all appropriate payments of personal income tax, Pension Fund, etc. are collected, as with salaries.

A retiring employee can use vacation in two ways:

• resign with payment of money for unused rest days;
• go on leave followed by dismissal.

The exception is dismissal due to the fault of the worker or under Art. Labor Code of the Russian Federation.

The second option is not spelled out in legislative documents. Therefore, the organization has the right to refuse the employee’s request.

To implement this option, the resigning employee must write a letter of resignation addressed to the company. The management must put a personal signature with the inscription “I don’t object.” But most often, requests of this kind are refused in order to avoid troubles with tax inspections.

The number of vacation days is calculated based on the date of employment. If 5.5 or 11 months have passed since employment, then the number of days is 28. In other cases, the calculation is carried out using special formulas.

If an employee has not spent his annual rest in the past year, then, accordingly, this year the number of days will be equal to 56. If the worker requests to pay part of the rest in cash equivalent, the manager will have to refuse, since the number of days in each year does not exceed 28 days. Therefore, in this situation there is only one way out - to take a vacation. The boss and the employee determine how to break the rest into parts by agreeing with each other.

An employee of the organization asked to replace the next vacation with 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 the 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.

FYI
Additional leaves in accordance with current legislation are provided to certain categories of employees without fail. For example, additional leave is due:

• employees with irregular working hours;
• "northerners";
• Chernobyl victims;
• other categories of workers.

FYI
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.

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