Leave at your own expense. What does an employer need to know? How to apply for a military leave for personal reasons Unpaid leave for family reasons

Often an employee for family reasons needs to take a vacation at his own expense. Therefore, release or not an employee on unpaid leave without pay. This is usually the right of the employer.

Moreover, b / s leave is given for family reasons. And other good reasons. Moreover, if you carefully study the rules. 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 experience.

For family reasons and other valid reasons, an employee may be provided at his written request. The duration of which is determined by agreement between the employee and the employer (part 1). When considering applications, attention is drawn to specific causes and circumstances. Caused the need for such a vacation. Indeed, the provision of leave without pay on the basis of part 1 of article 128 of the Labor Code of the Russian Federation is a right. Not the responsibility of the employer. That's why 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. Which the employee indicates in the application. So is the possibility of causing harm to the organization in the event of granting leave at its own expense.

Family circumstances and other good reasons include certain events and social needs. Arising in the personal life of the employee. The employer cannot send an employee on leave at his own expense without pay on his own initiative.

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They took a vacation at their own expense, can the employer require documents confirming a valid one?

Article 128 of the Labor Code of the Russian Federation
For family reasons and other valid reasons, an employee, upon his written application, may be granted unpaid leave, the duration of which is determined by agreement between the employee and the employer.
How many days can I take at my own expense at work according to the law
Can I be sent on vacation without pay for a year? How long can you take a vacation, arrange at your own expense according to the labor code without pay? For what period can a working pensioner, a pregnant woman be sent?
The employer is obliged, on the basis of a written application of the employee, to grant unpaid leave:
participants of 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, authorities for controlling the circulation of narcotic drugs and psychotropic substances, customs authorities, employees of institutions and bodies of the penitentiary system who died or died as a result of injury, concussion or injury, received in the performance of duties of military service (service), 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 the birth of a child, marriage registration, death of close relatives - up to five calendar days;

in other cases provided for by this Code, other federal laws or a collective agreement.

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Granting vacation leave at your own expense, without saving wages in a MANDATORY order

In some situations, the provision of unpaid leave is the obligation of the employer, established by the Labor Code of the Russian Federation. For example, employees to whom the employer is obliged to provide leave without pay are (Article 128 of the Labor Code of the Russian Federation):

working old-age pensioners (by age);
parents and wives (husbands) of servicemen who died or died as a result of injury, concussion or injury received during service, or as a result of a disease associated with military service;
working disabled people;
employees in cases of the birth of a child, 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 leave without pay. For example, such leave is due to those employees who combine work with study in educational institutions of higher and secondary vocational education or enter them.

The Labor Code, other federal laws or a collective agreement may also provide for other cases when the employer is obliged to provide leave without pay. For example, part 2 lists the categories of employees to whom the employer is obliged to provide unpaid leave in connection with admission to educational institutions of higher professional education and training in them, these are:

employees admitted to entrance examinations to educational institutions of higher professional education;
employees - students of preparatory departments of educational institutions of higher professional education;
employees studying in state-accredited educational institutions of higher professional education in full-time education, combining study with work.

The obligation of the employer to provide leave at his own expense is established not only in the Labor Code, but also in other federal laws. So, in accordance with paragraph 11 of Article 11 of the Law of May 27, 1998 No. 76-FZ "On the Status of Military Personnel", spouses of military personnel leave at their request provided simultaneously with the vacation of military personnel. At the same time, the duration of the leave of the spouses may, at their request, be equal to the leave of military personnel. Just a part of the vacation of the spouses of military personnel, exceeding the duration of the annual leave at their main place of work, is provided without pay. At the same time, the employer is not entitled to refuse unpaid leave without pay in this case.

The following employees may take leave at any time at their own expense until 14 days according to the Labor Code of the Russian Federation.

Single mother with a child under 14,
employee who has two or more children under the age of fourteen,
employee who has disabled child under the age of eighteen

In addition to the Labor Code, an employer's obligation to grant unpaid leave to certain employees is set out in the following federal laws:

dated November 26, 1996 No. 138-FZ - to individual participants in the electoral process at the time of elections to local governments;
dated 01/09/97 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 process of electing the President of the Russian Federation (trusted representatives of the candidate, members of the election commission with an advisory vote);
dated 18.05.2005 No. 51-FZ - to individual participants in the process of electing deputies of the State Duma (trusted representatives of the candidate, members of the election commission with an advisory vote);
dated May 27, 1998, No. 76-FZ - to the spouses of military personnel in respect of the 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 leave for up to three weeks a year at a time convenient for them)

The duration of leave without pay, if the employer is obliged to provide it, is determined by federal law, which provides for such leave at its own expense. Information on the duration of the said leave without pay, provided on a mandatory basis, is given in the table.

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Mandatory leave at own expense without pay

Employees who are granted leave	Vacation duration
All employees in cases of the birth of a child, marriage registration, death of close relatives	Up to 5 calendar days for each reason
Working disabled people	Up to 60 calendar days per year
Working old-age pensioners (by age)	Up to 14 calendar days per year
Employees who are parents, wives (husbands) of military personnel who died or died as a result of injury, concussion or injury received in the performance of military service duties, or as a result of a disease associated with military service	Up to 14 calendar days per year
Workers - participants of the Great Patriotic War	Up to 35 calendar days per year
Employees admitted to entrance examinations to educational institutions of higher professional education	15 calendar days
Employees - students of the preparatory departments of educational institutions of higher professional education	15 calendar days (for final exams)
Employees studying in state-accredited educational institutions of higher professional education in full-time education, combining study with work	15 calendar days in the academic year (for passing intermediate certification); 4 months (for the preparation and defense of the final qualifying work and passing the final state exams); 1 month (for passing the final state exams)
Employees admitted to entrance examinations to 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 intermediate certification); 2 months (for the preparation and defense of the final qualifying work and passing the final state exams); 1 month (for final exams)

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Documentation of unpaid leave

Regardless of whether the leave is mandatory or not, in order to provide it, the employee must write a statement where the employee must indicate the reason for the unpaid leave. In some cases, the employer is obliged to provide such leave (for example, in the event of a wedding or death of a close relative) ().

Director
Gasprom LLC
A.V. Ivanov

from the cashier
A.V. Petrova

STATEMENT

I ask you to grant me leave without pay from April 3, 2020 for 15 calendar days for family reasons.

17.03.2020 . . . Petrova. . . . A.V. Petrova

Based on the employee's application, issue an order to grant leave. The order must be signed by the head, the employee must be familiarized with the order under the signature.

The unified form of the order to grant 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, at its option:

or 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 for granting leave (in the form of No. T-60 or in a self-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 Decree of the State Statistics Committee of Russia dated January 5, 2004 No. 1). And when an employee goes on unpaid leave, vacation pay is not charged.

Also, information about the vacations provided by the personnel officer must be entered in 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 uses a unified form of the document;
to the appropriate section of the personal card, if the organization uses a self-developed document form.

Reflect similar information in the personal account of the employee (in form No. T-54 or in a self-developed form).

In the time sheet, vacation time b / s is marked with the code “DO”, if the vacation is granted according to the permission of the employer, or the code “OZ”, if the employee goes on vacation based on the provisions of the current legislation of the Russian Federation.

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DURATION of vacation at own expense, without pay

At the written request of the employee, the employer may provide the employee with leave without pay. The duration of leave without pay is established by agreement of the parties: 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 leave: main or additional (part 1 of article 120 of the Labor Code of the Russian Federation). Thus, if the holidays fall on the period of unpaid leave, then they are included in the number of calendar days of such leave and do not extend it.

The maximum duration of leave at one's own expense is not regulated by law. For how long to grant leave, the employer and 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.

As a rule, unpaid leave is granted in calendar days. The current labor legislation does not provide for the transfer of such leave in connection with weekends and non-working holidays. Therefore, the employer should not extend it for these days.

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Symbols, Marks in the time sheet

OZ- Leave without pay 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 Conventions for the time sheet

Vacation days without pay are completely excluded from the calculation period when calculating average earnings, regardless of its duration. Reason - subparagraph "e" of paragraph 5 of the Regulations on the peculiarities of the procedure for calculating the average wage, approved by the Decree of the Government of the Russian Federation of December 24, 2007

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Guarantees for an employee on leave without pay

As a rule, an employee cannot be dismissed at the initiative of the employer during his stay on such leave. Since according to the employee cannot be dismissed at the initiative of the employer during his stay on vacation, except in the event of liquidation of the organization or termination of activity by an individual entrepreneur.

The hospital allowance must also be paid when the employee himself fell ill or was injured while on annual leave - basic or additional (clause 1, part 1, article 9 of the Law of December 29, 2006 No. 255-FZ). During the illness, the period of leave 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 release from work (except for annual holidays) with or without pay, no sick leave benefits are paid to employees. For example, an employee is not paid an allowance for the day of his participation in a court session as a juror, as well as days falling on leave at his own expense or leave to care for a child.

If an employee goes on maternity leave during unpaid leave, the employer is obliged to pay her maternity allowance, since the employee is an insured person. Moreover, unpaid leave must be interrupted from the moment maternity leave begins. The maternity benefit is paid to the employee in the amount of 100% of the average earnings (clause 1 of the Federal Law of December 29, 2006 No. 255-FZ).

In the absence of an employee in the billing period and before it actually accrued wages and actually worked days, the average earnings should be calculated on the basis of the official salary, the tariff rate of the category established for the employee, official salary, and monetary allowance (remuneration). The basis is paragraph 11 of the Regulations on the peculiarities of the procedure for calculating benefits for temporary disability, for pregnancy and childbirth for citizens subject to compulsory social insurance, approved by Decree of the Government of the Russian Federation of 06/15/2007 No. 375.

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On its own initiative, the employer does not have the right to send employees on vacation 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 Code of Administrative Offenses of the Russian Federation.

The inadmissibility of forced leave 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 dated June 27, 1996 No. 40). In the Labor Code of the Russian Federation, the employee's initiative () is also considered a condition for granting leave at his own expense.

The situation when employees, due to the fault of the employer, cannot perform their labor duties,. During downtime, employees need to pay at least 2/3 of the average earnings (part 1).

If, instead of accruing these payments to employees, the employer sends them on leave without pay, this will be a violation for which liability is provided:

for officials of the organization (head) - a warning or a fine from 1000 to 5000 rubles. (repeated violation entails a fine in the amount of 10,000 to 20,000 rubles or disqualification for a period of one to three years);
for entrepreneurs - a fine from 1000 to 5000 rubles. (repeated violation entails a fine in the amount of 10,000 to 20,000 rubles);
for an organization - a fine from 30,000 to 50,000 rubles. (repeated violation entails a fine in the amount of 50,000 to 70,000 rubles).

Any employee, in addition to work, has a family, relatives, which means that there is always a possibility of a situation when an employee needs to be released from work to solve some family problems. In this case, the legislation provides him with the opportunity to take a vacation for several days at his own expense. In this article, we will call it “family leave”.

Vacation at your own expense

Such leave is regulated by Art. 128 of the Labor Code of the Russian Federation. In labor law, the concept of "leave without pay" is used. Often it is also called administrative.

The specified article determines that such leave is granted:

for family reasons and other valid reasons;
duration agreed between the employee and the employer.

This means that the employer is not obliged to provide the employee with unpaid leave, and if it is unprofitable for him to leave the employee during this period or he considers the reasons given by the employee to be disrespectful, he can refuse him leave. Of course, there are exceptions, for example, students, veterans, state and municipal employees. The Labor Code secures for them the right to a certain number of days of unpaid leave, which the employer is obliged to provide them in any case.

In this article, we will analyze only those cases when the employee refers to family circumstances in the application for leave.

Family circumstances

Under the specified phrase in this context, we understand the circumstances due to the marital status of the employee or his family ties, which may be good reasons for the absence of the employee at his workplace. Under such circumstances, the employee cannot solve the issues or problems that have arisen in his family without interrupting work. For example, if, apart from the employee, there is no one to care for his sick relative.

Sometimes it is enough for an employee to indicate only this wording in an application for leave, and leave will be granted to him without any additional questions.

However, not all employers share the family principles of their employees, so the employee's application may be left without satisfaction even if there are really good reasons for the vacation.

At the same time, the legislator ensured the protection of the family interests of the employee, providing for such family circumstances that are the basis for the mandatory granting of leave, regardless of the position of the employer on this account.

Firstly, these are the circumstances provided for by Art. 128 of the Labor Code of the Russian Federation, upon the occurrence of which the employer has an obligation to release the employee from work for up to 5 days:

birth of a child. The employee is given the opportunity to spend time with his family - his wife and child, without being distracted by work, to help a young mother in the first days after the baby is born;
death of a relative. Usually at this time, the employee resolves issues related to the funeral, the organization of a memorial dinner, these days he himself is experiencing the loss of a loved one and provides moral support to other family members;
Marriage registration. The law does not regulate when an employee can use the prescribed 5 days on this basis. So, he can go on vacation 2 days before the wedding date and leave 2 days after it, or he can spend the entire vacation preparing for the wedding or spending time with his spouse after the celebration.

Secondly, the right to leave for family reasons for up to 14 days can be granted by a collective agreement to parent workers to care for children (Article 263 of the Labor Code of the Russian Federation). These include:

employees who have two or more children under the age of 14;
parents of children with disabilities who have not reached the age of majority;
single mothers and fathers who are raising a child under the age of 14.

Leave must be granted to them at a time convenient to them, but cannot be accumulated and used in the next year.

Regardless of the reasons for which the employee goes on vacation, including for family reasons, it is necessary to remember Art. 121 of the Labor Code of the Russian Federation, according to which, in the event of a vacation duration of more than 14 days, the calculation of the calendar year for the appointment of paid leave is shifted by the excess amount.

It should also be taken into account that even with a fairly loyal attitude of the employer to the employee's family problems, the abuse of the right to leave for such reasons can adversely affect the employee's reputation.

Answer: Payments for additional holidays granted on the basis of a collective agreement for family reasons are not taken into account for income tax purposes.

Rationale: Article 128 of the RF Labor Code provides that

According to Art.

Getting ready for the May holidays: how to arrange a vacation at your own expense

During the May holidays, many employees want to relax to the maximum. Therefore, for the period between holidays, they often arrange either another vacation (part of the vacation), or a vacation at their own expense. About which employees the employer is obliged to provide leave without pay, how to properly issue an order for leave without pay and other personnel documents - we will tell in our article.

Self-employed leave is the most common informal name for unpaid leave.

The boss does not let go of work for family reasons and interferes in personal life

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.

parents and wives (husbands) of military personnel, employees of the internal affairs bodies, the federal fire service, bodies for monitoring

Explain about family time off

1 answer. Moscow Viewed 921 times. Asked 2011-10-27 10:53:47 +0400 in the topic "Labor Law" I took 1 day at my own expense for family reasons, the boss requires you to indicate the reason, but this is not the reason? - I took 1 day at my own expense for family reasons, the boss requires you to indicate the reason, but this is not the reason. Further

1 answer. Moscow Viewed 710 times. Asked 2011-04-17 10:54:30 +0400 in the topic "Labor Law" Due to family circumstances, I could not go to work.

VACATION at YOUR expense

Cadres (so far orally) reported that this "is not a 'good' reason." I have a question: who determines the gradation of "respect". Is this purely HR speculation? at their discretion? Well, the guides, of course.

In case of refusal to grant me such leave, is the employer obliged to give a written response-refusal, indicating the specific reason on the basis of which I was denied this, referring to specific regulations, codes, etc.?

For family reasons, shopping mall rf

parents and wives (husbands) of military personnel who died or died as a result of injury, concussion or injury received in the performance of military service duties, or as a result of a disease associated with military service - up to 14 calendar days a year;

Leaves without pay are granted for various reasons and have different purposes.

Provision of leave without pay, days on account of leave

Often a worker for family reasons needs to take it at his own expense. Therefore, whether or not to release an employee on unpaid leave without pay is, as a rule, the right of the employer.

Moreover, it is given at its own expense for family reasons and other valid reasons. Moreover, if you carefully study the norms of the labor code of the Russian Federation. it turns out that sometimes it is also the responsibility of the firm.

Article 71 of the Labor Code of the Russian Federation dismissal for family reasons

For family reasons and other valid reasons, an employee, upon his written application, may be granted without pay, the duration of which is determined by agreement between the employee and the employer. The employer is obliged to

This dismissal When dismissing, the main point is the full observance of the rights of the employee and protection of him from illegal dismissal, the guarantee of this is that all the grounds for terminating the employment contract are enshrined in the Labor Code of the Russian Federation.

Labor Code of the Russian Federation

Annual basic paid leave lasting more than 28 calendar days (extended main) is granted to employees in accordance with this Code and other federal laws.

ST 128 of the Labor Code of the Russian Federation.

The employer is obliged, on the basis of a written application of the employee, to grant unpaid leave:

participants of 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, customs authorities, employees of institutions and bodies of the penitentiary system who died or died as a result of injury, concussion or injury received in the performance of duties of military service (service), or due to 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 the birth of a child, marriage registration, death of close relatives - up to five calendar days;
in other cases provided for by this Code, other federal laws or a collective agreement.

Commentary on Art. 128 of the Labor Code of the Russian Federation

1. Leave without pay, although regulated by the chapter of the Labor Code of the Russian Federation related to holidays, cannot be considered as a type of annual paid leave, basic or additional. With annual leave, it is united only by the fact that the employee retains his place of work (position). But unlike annual leave, unpaid leave is granted without regard to seniority and is not paid. It should be considered as a special form of social guarantees for workers.

2. Part 2 of the commented article 128 of the Labor Code of the Russian Federation establishes the categories of workers whose requirement for leave without pay of a certain duration is mandatory for the employer. Family circumstances are defined under which the right to leave without pay for up to five calendar days is received by any employee.

Other cases provided for by the Labor Code of the Russian Federation or other federal laws, when the employer is obliged, at the request of the employee, to provide leave without pay, include the cases of granting such leave:

combat veterans and military personnel awarded orders or medals of the USSR for service in the specified period, and other persons specified in Art. Art. 16 - 19 of the Federal Law of January 12, 1995 N 5-FZ "On Veterans", - for up to 35 calendar days a year;

employees - Heroes of the Soviet Union, Heroes of the Russian Federation, full cavaliers of the Order of Glory, Heroes of Socialist Labor and full cavaliers of the Order of Labor Glory - for up to three weeks a year at a time convenient for them (Article 8 of the Law of the Russian Federation of January 15, 1993 N 4301-1 "On the status of Heroes of the Soviet Union, Heroes of the Russian Federation and full holders of the Order of Glory", Article 6 of the Federal Law of January 9, 1997 N 5-FZ "On the provision of social guarantees to Heroes of Socialist Labor and full holders of the Order of Labor Glory" );

employees admitted to entrance examinations to educational organizations of higher professional education and to state-accredited educational organizations of secondary vocational education - for a period of 15 and 10 calendar days, respectively;

employees - students of preparatory departments of educational organizations of higher professional education for passing final exams - for a period of 15 calendar days;

employees studying in state-accredited educational institutions of higher or secondary vocational education on a full-time basis for passing intermediate certification - 15 and 10 calendar days per academic year, respectively; for the preparation and defense of the final qualifying work and passing the final state exams - four months and two months, respectively; for passing the final exams - one month (see Art., to them);

part-time employees - if the duration of the annual paid leave at part-time work is less than at the main place of work (see);

military spouses. This category of workers has the right to receive the next vacation at the same time as the military personnel, and the duration of the vacations of the spouses of the military personnel can, if they wish, be equalized with the duration of the vacation of the military personnel by granting them unpaid leave (clause 11, article 11 of the Federal Law of May 27, 1998 . N 76-FZ "On the status of military personnel");

people's guards and freelance police officers. They are provided with additional leave without pay for up to 10 calendar days at their place of work (clause 3, article 26 of the Federal Law of April 2, 2014 N 44-FZ "On the participation of citizens in the protection of public order").

3. Employees working in the regions of the Far North and areas equivalent to them, with full or partial combination of annual paid holidays for no more than two years, must be granted leave without pay for the time necessary to travel to the place of use of the leave and back. The total duration of the leave granted shall not exceed six months.

4. The grounds for mandatory granting of unpaid leave may also be established by collective agreements. In particular, an employee who has two or more children under the age of 14; an employee with a disabled child under the age of 18; a single mother raising a child under the age of 14; a father raising a child under the age of 14 without a mother may be provided by a collective agreement with additional annual leave without pay at a convenient time for them up to 14 calendar days. The specified leave, at the request of the employee, may be attached to the annual paid leave or used separately in full or in parts. The transfer of this leave to the next working year is not allowed (see also the commentary to it).

5. In determining when an employer is required to grant unpaid leave, federal laws and collective agreements generally set a maximum duration for such leave. The specific duration of the vacation may be less than these limits and is determined by the employee himself in his written application.

If an employee applies for leave of longer duration than established by law (collective agreement), such an increase in leave may take place by agreement of the parties.

6. An employee who has received leave without pay has the right to refuse to use it and return to the performance of labor duties, informing the employer about this.

7. In cases not specified in part 2 of the commented article 128 of the Labor Code of the Russian Federation, other federal laws or a collective agreement, an employee’s application for granting him leave without pay is not necessary for the employer, who has the right to satisfy the employee’s request or refuse to satisfy it. If the employee's request is satisfied, the duration of the vacation is determined by agreement of the parties. Leave without pay may be granted at any time.

8. On the rules for including unpaid leave in the length of service, giving the right to the annual basic paid leave,.

" № 5/2012

Judging by the letters and phone calls received by our editorial office, employers are becoming more and more interested in the issue of providing unpaid leave. Now preparations are underway for the summer season, and then the garden season will come at all. Therefore, employees tend not only to extend their annual paid vacation, but also to take a couple of days off. And sometimes it takes a day or two to solve some specific small matters (go to the hospital, draw up documents, etc.). The way out in this case is unpaid leave. In order to prevent violations of labor laws, the employer needs to know the intricacies of providing such leave. Let's talk about them in this article.

Cases of granting leave without pay

Leaves without pay are divided into two groups: those that are given at the discretion of the employer (that is, the employer has the right to refuse to grant leave) ( Part 1 Art. 128Labor Code of the Russian Federation), and those that the employer is obliged to provide at the request of the employee ( Part 2 Art. 128). Let's consider the first group.

Article 128 it was established that for family reasons and other valid reasons, an employee, upon his written application, may be granted leave without pay, the duration of which is determined by agreement between the employee and the employer.

As you can see, granting this type of leave to an employee is a right, not an obligation of the employer, therefore, he may refuse it if he considers that the reasons indicated by the employee in the application are disrespectful or untrue.

Since the employer evaluates the validity of the reasons on their own, disputes are possible, since there is no list of such reasons, as well as criteria for classifying them as “valid”, in the labor legislation.

Note that even if the employee does not indicate the reason why he cannot be present at work, the employer still has the right to meet him halfway and provide such leave. After all, an employee, asking for an administrative one, understands that he will lose in wages, and will not take such a vacation “just like that”.

A situation is possible when the employer, considering that the reason is disrespectful and the vacation will negatively affect the course of production activities, refuses to provide it, and the employee still does not come to work. Such behavior of the latter is regarded as a violation of labor discipline, for which it is possible to apply disciplinary measures.

When does the Labor Code of the Russian Federation prohibit refusing unpaid leave?

IN part 2 art. 128 of the Code, categories of employees are indicated, to whom the employer is not entitled to refuse to provide unpaid leave. Let's present them in a table.

	Length of unpaid leave
Participants of the Great Patriotic War	Up to 35 calendar days per year
Working old-age pensioners (by age)	Up to 14 calendar days per year
Parents and wives (husbands) of military personnel who died or died as a result of injury, concussion or injury received in the performance of military service duties, or as a result of a disease associated with military service	Up to 14 calendar days per year
Working disabled people	Up to 60 calendar days per year
Employees in cases of the birth of a child, marriage registration, death of close relatives	Up to 5 calendar days

Based Art. 173 Labor Code of the Russian Federation the employer is obliged to provide unpaid leave to persons who combine work with study in higher educational institutions with state accreditation. The employer, at the written request of these persons, is obliged to provide them with a vacation of 15 calendar days for entrance examinations, passing final exams. The duration of unpaid leave for preparing and defending the final qualification work and passing the final state exams is four months, and for passing the final state exams - one month. A similar guarantee is provided Art. 174 Labor Code of the Russian Federation for employees - students of educational institutions of secondary vocational education, but the terms of such holidays are reduced and range from 10 calendar days to two months.

In some cases, unpaid leave is due to part-time workers. Yes, due to Art. 286 of the Labor Code of the Russian Federation if at a part-time job the duration of the employee's annual paid leave is less than the duration of the leave at the main place of work, then the employer, at the request of the employee, must provide him with leave of the appropriate duration without pay.

Besides, Art. 319 of the Labor Code of the Russian Federation provides for the right of workers to one unpaid day per month for one of the parents (guardians, trustees, foster parents) working in the Far North or in an equivalent area with a child under the age of 16 years.

The employer is not entitled to refuse to grant leave without pay, guaranteed by labor legislation, as well as to apply disciplinary measures to employees who have gone on such leave without his consent. There are many examples of judicial practice confirming this, we will give one of them.

K. appealed to the Meshchansky District Court of Moscow with a claim against the State Educational Institution for reinstatement, recovery of wages for the time of forced absenteeism and compensation for non-pecuniary damage. In support of the claim, he indicated that on 09/07/2009 he was dismissed from his position for absenteeism without good reason, however, it is illegal, since on 08/27/2009 K. filed an application for granting in accordance with Art. 128Labor Code of the Russian Federation leave without pay for the period from 27.08.2009 to 28.08.2009 as a working pensioner.

According to Art. 128Labor 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. By virtue of this norm, the employer is obliged, on the basis of a written application of the employee, to provide leave without pay, in particular, to working old-age pensioners (by age) - up to 14 calendar days a year.

By virtue of pp. "d" p. 39Decree of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No.2 if the employee is terminated by pp. "a", paragraph 6, part 1, art. 81Labor Code of the Russian Federation for absenteeism, it must be borne in mind that the use of rest days by an employee is not absenteeism if the employer, in violation of the obligation stipulated by law, refused to provide them and the time the employee used such days did not depend on the discretion of the employer.

The court found that on 27.08.2009 K. applied for unpaid leave as a working pensioner. This application was received by the employer on August 27, 2009, but the decision on it was not made by the SEI in the manner prescribed by law.

Resolving the dispute, the court of first instance came to the conclusion that K.'s demands for reinstatement were satisfied, since the GOU had no grounds for dismissing him for absenteeism. The absence of the plaintiff at the workplace was due to valid reasons: by virtue of the provisions Art. 128Labor Code of the Russian Federation the plaintiff, as a working pensioner, was entitled to unpaid leave. The failure by the defendant to grant the said leave to the plaintiff cannot testify to the plaintiff's unauthorized departure on leave and absenteeism, since the law in this case imposes on the employer the obligation to give the employee such leave. This decision was upheld by the cassation instance (Determination of the Moscow City Court of July 12, 2011 No. 33-21571).

Other regulations that do not allow an employee to be denied unpaid leave

The obligation to provide unpaid leave may arise from the employer not only according to the norms of the Labor Code, but also by virtue of other federal laws:

1)dated 12.01.1995 No.5-FZ "On Veterans":

war invalids are provided up to 60 calendar days a year ( Art. 14);
participants of the Great Patriotic War - up to 35 calendar days a year ( Art. 15);
combat veterans - up to 35 calendar days a year ( Art. 16);
military personnel who served in military units, institutions, military educational institutions that were not part of the army in the period from 06/22/1941 to 09/03/1945 for at least six months, military personnel awarded orders or medals of the USSR for service in the specified period , - up to 35 calendar days a year ( Art. 17);
persons awarded with the badge "Inhabitant of besieged Leningrad" - up to 35 calendar days a year ( Art. 18);
persons who worked during the Great Patriotic War at air defense facilities, the construction of defensive structures, naval bases, airfields and other military facilities within the rear borders of the operating fronts, operational zones of the operating fleets, on the front-line sections of railways and roads - up to 35 calendar days ( Art. 19);

2)dated 22.08.1996 No.125-FZ "On higher and postgraduate professional education": according to it Art. 17 15 calendar days of unpaid leave are provided to employees entering universities;

3)dated 27.05.1998 No.76-FZ "On the status of military personnel": leave is provided for spouses of military personnel;

4)dated 09.01.1997 No. 5-FZ "On the provision of social guarantees to the Heroes of Socialist Labor and full holders of the Order of Labor Glory": according to it Art. 6 the named persons are provided up to three weeks a year at a time convenient for them;

5) dated 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" - to proxies of candidates and electoral associations for the period of exercising their powers ( Art. 43);

6)dated 18.05.2005 No.51-FZ "On the election of deputies of the State Duma of the Federal Assembly of the Russian Federation"- members of the election commission with the right of an advisory vote on the basis of Art. 22 law, the employer is obliged to provide any day and for any amount of time between the date of registration of the candidate and the day of the official publication of the election results.

Local regulations on administrative leave

Local regulations of the employer, collective agreement or industry agreements may provide for other categories of employees and cases of granting leave without pay.

Yes, due to Art. 263 of the Labor Code of the Russian Federation a collective agreement may establish additional annual leave without pay for up to 14 calendar days for employees:

having two or more children under the age of 14;
having a disabled child under the age of 18;
single mothers raising a child under the age of 14;
fathers raising a child under the age of 14 without a mother.

Moreover, labor legislation establishes that this unpaid leave is provided to employees of these categories at a convenient time for them. At the written request of the employee, it can be attached to annual paid leave or used separately in whole or in parts. The transfer of this leave to the next working year is not allowed.

The refusal to grant unpaid leave in accordance with the norms of the collective agreement in the event that the employee applies to the regulatory authorities will be declared illegal. Let us give an example from judicial practice.

Sh. A. V. filed a lawsuit against the MU for reinstatement, recovery of wages for the time of forced absenteeism, and compensation for non-pecuniary damage. On May 13, 2010, he applied to the Director of the Medical University with an application for additional leave without pay from May 17, 2010, since, in accordance with paragraph 4.7 of the collective agreement, employees with two children under the age of 14 are obliged to provide this leave at a convenient time. time for the worker. Having not received a refusal from the director of the MU to grant leave, the plaintiff went on additional leave from 05/17/2010 to 05/28/2010, after which he went to work. He was issued a dismissal order for absenteeism.

By the decision of the Zherdevsky District Court of the Tambov Region, Sh. A. V. was reinstated at work.

In accordance with pp. "a", paragraph 6, part 1, art. 81 of the Labor Code of the Russian Federation the employment contract can be terminated by the employer if the employee commits absenteeism, that is, absence from the workplace without good reason during the entire working day (shift), regardless of its (her) duration or more than four hours in a row during the working day (shift).

Having examined the materials of the case, the court came to the conclusion that the plaintiff did not commit absenteeism. In the period from 05/17/2010 to 05/28/2010, he was on additional leave without pay, which is provided Art. 128Labor Code of the Russian Federation and clause 4.7 of the collective agreement of MU. MU had no right to refuse to grant this leave.

The Tambov Regional Court upheld the decision of the Zherdevsky District Court of the Tambov Region (cassation Ruling No. 33-2693 dated September 13, 2010).

Federal Industryagreementfor the coal industry of the Russian Federation for 2010 - 2012(registered by Rostrud under No. 147/10-12 ( Letter No. 30.04.20102100-TK)) leave without pay is established for up to five calendar days in cases of marriage of the children of employees.

In addition, the provision of unpaid leave may be associated with a specific event. For example, Clause 2.7 of the Sectoral Tariff Agreement in the Electric Power Industry of the Russian Federation for 2009-2011 years Additional paid holidays are provided for the following reasons:

a) one of the parents or another person (guardian) raising children - primary school students (grades 1 - 4), on Knowledge Day (September 1);

b) to the father at the birth of the child;

c) marriage of the employee or his children (in all cases, if the marriage is for the first time);

d) death of family members (spouse(s), parents (guardian, custodian), children, siblings).

Duration of unpaid leave and its accounting

The duration of unpaid leave is not limited by labor legislation and is established by agreement between the employee and the employer, except when it is established by the Labor Code and other federal laws.

The period of the employee's stay in the administrative office must be recorded in the time sheet (forms T-12, T-13). Depending on the reason for granting leave without pay, the following designations are used:

"UD" (digital 13) - additional leave in connection with training without pay;
"DO" (digital 16) - leave without pay, provided to the employee with the permission of the employer;
"OZ" (digital 17) - leave without pay under the conditions provided for by the current legislation of the Russian Federation;
"DB" (digital 18) - annual additional leave without pay;
"NV" (digital 28) - additional days off without pay.

It should be noted that administrative accounting is associated not only with the amount of wages, but also with the length of service for providing annual paid leave. So, Art. 121 Labor Code of the Russian Federation established the procedure for calculating the length of service, giving the right to annual paid leave. In accordance with this article, the time of unpaid leave granted at the request of the employee, not exceeding 14 calendar days during the working year, is included in the length of service, giving the right to annual basic paid leave. It turns out that if the total duration of administrative leave during the working year was, for example, 25 calendar days, then when calculating the length of service giving the right to annual paid leave, calendar days starting from the 15th day are not taken into account.

For example, an employee got a job on 04/12/2010. The duration of unpaid leave in 2010 was 27 days. Since he was granted more than 14 days of administrative leave, the duration of the working year will be increased by the number of days exceeding 14 - 13. Therefore, the working year will increase by 13 calendar days: it will begin on 04/12/2010 and end on 04/24/2011.

Registration of unpaid leave

In order to receive leave without pay, the employee must write an application with a request for its provision. In such a statement, he should indicate the reasons why he needs such leave, and the desired dates of rest. Recall that the employer may refuse to grant leave if he considers the reasons indicated in the application to be disrespectful, unless such an application was received from employees on the grounds specified in Art. 128Labor Code of the Russian Federation.

After agreement with the head of the company, an order is issued in the form T-6 (or T-6a in the case of granting leave to several employees). In section "B" of the form, the type of vacation is indicated - "vacation without pay", the number of calendar days of vacation and the dates on which it falls. The order is signed by the head of the organization or an authorized person.

Often, an application for administrative leave is submitted to the immediate supervisor, who agrees to release the employee. However, if the employee goes on vacation without waiting for the order to be issued, such actions can be regarded as absenteeism. And here is an example from jurisprudence.

The Basmanny District Court of Moscow considered the case on Sh.'s claim against CJSC to change the wording of the grounds for dismissal to, the recovery of average earnings for the time of forced absenteeism, and compensation for moral damage.

Sh. was fired on September 13, 2010 for being absent from work on September 9 and 10, 2010 without good reason. Believes that the dismissal is illegal, as she received permission from the management not to go to work during the disputed period.

The court found that, in accordance with the terms of Sh.'s employment contract, a five-day week (40 hours) was established. The immediate supervisor did not object to the provision of unpaid leave. However, Sh., not convinced that the company's management had issued an order to grant her unpaid leave on September 9 and 10, 2010, was absent from the workplace full time. Since ZAO, by virtue of Art. 128 Labor Code of the Russian Federation there is no obligation to provide Sh. with days of rest, and no violations of the procedure for applying disciplinary measures to CJSC have been identified, the dismissal is legal and justified.

Disagreeing with this decision of the district court, Sh. appealed against it on cassation. However, the court of cassation confirmed the conclusions of the district court and refused to satisfy Sh.'s claims (Decision of the Moscow City Court dated March 18, 2011 in case No. 33-7425).

The order to grant unpaid leave to the employee must be familiarized against signature. In case of refusal of the employee, an appropriate act is drawn up.

Sometimes the question arises: is it necessary to draw up a note-calculation on the provision of leave in the T-60 form? Since this document is necessary for calculating wages when granting leave, and administrative leave does not imply its payment, it is not necessary to draw up a note-calculation.

On the basis of the order, an entry is made in the employee's personal card (form T-2) in section VIII indicating that it was leave without pay. In addition, the number of days, the start and end dates of the holiday and the details of the order - its date and number are indicated.

Is it possible to recall an employee from the administrative office?

The current legislation does not regulate this issue. We believe that recall from unpaid leave is possible by analogy with Art. 125 of the Labor Code of the Russian Federation, which regulates the procedure for recalling an employee from annual paid leave.

In order to terminate the leave at the initiative of the employer, it is necessary to request the consent of the employee to this. After receiving such an order is issued. Its unified form is not provided, it is drawn up in an arbitrary form indicating the reasons for the recall and the date of entry to work.

However (unlike annual paid leave), the remaining days from administrative leave in connection with a recall from it are not subsequently added to any leave and are not provided at any time convenient for the employee during the working year.

Unpaid "forced" leave

The State Labor Inspectorate quite often accepts applications from employees in which they complain that the employer forced them to write an application for unpaid leave, threatening with dismissal. If inspectors, carrying out control and supervisory activities at the employer, reveal a violation, quite often this “goes sideways” for the employer: administrative liability measures are applied to him. Recall that according to Art. 5.27 of the Code of Administrative Offenses of the Russian Federation Violation of labor legislation entails the imposition of an administrative fine:

for officials - in the amount of 1,000 to 5,000 rubles;
for persons engaged in entrepreneurial activities without forming a legal entity - from 1,000 to 5,000 rubles. or administrative suspension of activities for up to 90 days;
for legal entities - from 30,000 to 50,000 rubles. or administrative suspension of activities for up to 90 days.

But not only an administrative fine threatens the employer. The court may regard the time an employee is in a forced administrative detention as simple with all the ensuing consequences. So, G. applied to the district court with a claim for the restoration of labor rights violated by the employer. During the court proceedings it was found out that the employer had asked G. to write an application for administrative leave, as he did not have a job for her. After examining the case materials and hearing the testimony of witnesses, the court found that the employer violated G.'s labor rights granted to her. Art. 157 Labor Code of the Russian Federation. In particular, there was downtime due to the fault of the employer, payable in the amount of at least 2/3 of the average salary of an employee. Since, in violation of the obligation established by Art. 22 Labor Code of the Russian Federation, the employer did not provide G. with work stipulated by the employment contract, the court decided to recover from the employer the wages not received by the plaintiff as a result of illegal suspension from work, payment for the services of a representative and compensation for moral damage.

"On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation".

The validity of this document has been extended until December 31, 2012 (clause 4 of the Agreement on Amendments and Additions to the Sectoral Tariff Agreement in the Electric Power Industry of the Russian Federation for 2009-2011 and its Extension).