Can an employee be forced to go on vacation? The employee does not want to go on vacation - the right decisions

Is it possible to replace the additional leave of a pregnant employee with monetary compensation? Can an employee take vacation from Saturday to Sunday? Can a vacationer be hired to work under a contract?

All vacation documents are issued, employees are familiar with them and are waiting for their turn to go on vacation. And suddenly one of them is interested in whether it is possible to continue working instead of a vacation. Like, I want to earn more, difficult circumstances arose in the family, and in general it is much more interesting at work than on vacation. Many of us in such a situation will automatically answer that it is impossible. In fact, if you properly arrange work on vacation, you can not worry about breaking the law.

Option 1. Postpone vacation

The sequence of granting annual paid holidays is established by the schedule. Neither the employer nor the employee has the right to unilaterally change the vacation time determined by the schedule. This issue is resolved only by their mutual agreement. In some cases, the organization is obliged to postpone the vacation at the written request of the employee on another date if:
- the employee was paid vacation pay untimely (less than three days before the start of the vacation);
- the employee was warned about the start time of the vacation later than two weeks.

On its own initiative, the employer has the right to postpone the employee's vacation with his consent only if his absence may adversely affect the activities of the organization. In this case, deferred leave must be granted within 12 months after the end of the working year for which it relies. This does not apply to employees under the age of 18, as well as those employed in work with harmful and (or) dangerous working conditions. They must rest annually.

If an employee refuses to go on vacation for the second year in a row, you have the right to discipline him for failure to comply with the order of the head.

Regardless of the circumstances, labor law prohibits depriving an employee of vacation for two consecutive years. Accordingly, if your employee has not rested for a long time, the option of postponing the vacation will not work.

Option 2. Provide the employee with leave on weekends

The number of calendar days of vacation includes all days, including those that fall on weekends. The exception is non-working holidays, which are not included in the vacation and are not paid. Thus, if an employee asks for leave on Saturday and Sunday and the employer does not mind, then these days should be paid to him. The Labor Code does not prohibit dividing vacation into parts. The main thing is that at least one of them be at least 14 calendar days. The employee can divide the remaining rest time and use it at his own discretion, with the consent of the employer. Thus, every week the employee has the right to use several days of vacation.

Attention!

Vacation pay must be paid no later than three calendar days, and not working days before the start of the vacation.

Example

In 2013, an employee is entitled to 28 calendar days of annual paid leave. With the permission of the employer, she decided to postpone part of the vacation, dividing it into several parts. She takes a vacation: from 6 to 7 July (two days); from 13 to 15 July (three days); from 20 to 21 July (two days); from 27 to 28 July (two days). This procedure for providing rest was approved by the order on the provision of annual paid leave (19 days) (sample below). The employee will go on vacation for 19 days from August 1 to August 19 according to the vacation schedule.

Option 3. Fire the employee and then hire him again

Upon dismissal, the employee is entitled to monetary compensation for all days of unused vacation. Moreover, regardless of the reason for the termination of the employment contract, as well as whether the employee will be rehired by the same company, and after what time this will happen.

Therefore, the employee can first be fired, paying him compensation for all unused vacations, and then rehiring him. The Labor Code does not oblige the employer to give any explanations, because in practice it often happens that a recently quit employee is called back because they could not find a replacement for him, or the specialist returns after some time.

Option 4. Conclude a civil law contract for the duration of the vacation

The law does not prohibit the involvement of employees who are on annual paid leave to work under a civil law contract. During the rest period, the employee is free from the performance of labor duties and can use this time at his own discretion. For example, for entertainment, study or for a part-time job. However, you need to be extremely careful when drawing up a civil law contract with a full-time employee. Its wording should not contain signs of an employment relationship. When concluding a civil law contract, consider a few points.

1. The parties to a civil law contract are the customer and the contractor(contractor, agent, etc.). At the same time, the assigned work must be significantly different from the job duties.

2. Such an agreement is concluded for the performance of a specific task, work. For example, “The Contractor undertakes, on the instructions of the Customer, to translate from English into Russian the book by Dave Hemsat “301 Ways to Have Fun in the Office” with a volume of 80,000 characters, and the Customer undertakes to pay for this work.”

3. The company pays the contractor final result(cargo delivered, building repaired, premises cleaned, etc.). For example, if we are talking about translation, you can include the following provision: “The cost of translating one page of text of 1800 characters with spaces is 250 rubles.”

4. Concludes for a certain period. In its conditions, the start and end dates of the work are prescribed. For example, "The term of the work is from July 01 to July 19, 2013."

5. The contractor (contractor) is not included in the staff of the organization, is not subject to the internal labor regulations and other local regulations of the company. He organizes your mode of operation.

6. The contractor is not subject to social guarantees provided for by the Labor Code (paid leave, temporary disability benefits, compensation for harmful and dangerous working conditions, etc.).

7. The fact of performing work (rendering services) must be documented. As a rule, an act of acceptance and transfer of work, which is an integral part of the contract. The contract states as follows: “The works are considered rendered after the signing of the act of acceptance and transfer of works by the Customer. The Customer pays the remuneration for the work performed to the Contractor within three days from the date of signing the act of acceptance and transfer of work performed.

professional dispute

Is it possible to attract a vacationer to work under a civil law contract?

Unacceptable Options

By applying one of the following methods, the organization violates labor laws. And the employer may be liable in the form of a fine for an official in the amount of 1,000 to 5,000 rubles and for an organization - from 30,000 to 50,000 rubles or an administrative suspension of activities for up to 90 days.

Can't get a partnership. According to the law, part-time employees are granted regular leave simultaneously with rest at their main place of work. In this way, having accepted the vacationer as a part-time employee, the employer is obliged to immediately send him on vacation.

Vacationers should not be allowed to work unofficially. According to the documents, the employee goes on vacation, he is paid vacation pay, but in fact he continues to work. And at the end of the month, he is paid a bonus as a reward for his work. In this case, the inspectors will have a question not only about the presence vacationer part of the vacation that exceeds 28 calendar days. That is, when an employee is entitled to additional or extended leave. For example, when vacationing for an irregular working day - three calendar days. With the consent of the employer, he can replace only this part of the vacation with compensation by submitting an appropriate application.

"Personnel. ru", 2011, N 6

Question: The internal labor regulations of our organization provide for the provision of annual paid leave of 32 calendar days. You can’t force many employees to go on vacation at all, so cases have recently become more frequent when employees ask for compensation with money. What to do in this situation? Refuse and force employees to use the vacation period for the intended purpose?

Answer: In accordance with Art. 122 of the Labor Code of the Russian Federation, an employee is annually granted leave, the minimum duration of which is determined by Art. 115 of the Labor Code of the Russian Federation and is 28 calendar days. For some positions and categories (for example, for teachers of educational institutions or working disabled people), an extended basic leave is provided. Annual additional paid leave is mandatory provided in cases established by labor legislation - for the special nature of work, for irregular working hours, for harmful or dangerous working conditions, etc. In addition, as in the case under consideration, employers, taking into account their financial and production capabilities can independently establish additional paid holidays for employees, which is permitted by Art. 116 of the Labor Code of the Russian Federation. Employees must use their right to rest every year. Only in exceptional cases, when the provision of leave in the current working year may adversely affect the activities of the organization, it is allowed to transfer the leave to the next working year - provided that it is used no later than 12 months after the end of the working year for which it is granted (h 3 article 124 of the Labor Code of the Russian Federation). In accordance with Part 4 of Art. 124 of the Labor Code of the Russian Federation, it is prohibited not to provide annual paid leave for 2 consecutive years. If this norm of labor legislation is not observed, then in the event of a violation, the officials of the organization will be liable under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation. Therefore, it is in the interests of the employer to monitor the timeliness of the use of annual leave by employees.

In Art. 126 of the Labor Code of the Russian Federation provides for the replacement of annual paid leave with monetary compensation, which is paid upon a written application from the employee. In this case, the part of the vacation exceeding 28 calendar days is compensated. So, if the internal labor regulations provide for the annual provision of 32 calendar days of vacation, then only 4 days are subject to monetary compensation if the employee wishes. The same rule also applies to the replacement of part of the vacation with monetary compensation when summing up annual paid holidays or transferring annual paid leave to the next working year: compensation is paid for the part of each annual paid leave that exceeds 28 calendar days, or any number of days from this part. Therefore, if an employee has accumulated 64 calendar days of vacation in 2 years (at the rate of 32 days annually), only 8 calendar days are subject to replacement of part of the vacation, and the employee must "take a vacation" for 56 days.

However, the rule on replacing annual paid leave with monetary compensation is not applicable in the case of heavy work and work with harmful and (or) dangerous working conditions. Also, according to part 3 of Art. 126 of the Labor Code of the Russian Federation, the vacation period cannot be replaced by cash payments for pregnant women and persons under the age of 18. Additional leave for these categories of employees is provided only in the form of rest days and cannot be replaced with money - even if the employees themselves express their will.

E. Roschupkina

National Union of Personnel Officers

Signed for print

The holiday season is in full swing. When scheduling vacations, many employers try to “let go” of employees during the summer period, since the volume of work, as a rule, decreases during this period (with the exception, of course, of certain employers). However, what if the employee, for whatever reason, refuses to go on vacation? Is it possible to “force” an employee to take a well-deserved rest, or will the vacation still have to be postponed? Let's deal with this issue from the point of view of the law.

One of the types of vacations is the annual basic paid vacation. This type of leave, in accordance with Articles 122 and 123 of the Labor Code of the Russian Federation, is provided to the employee annually. Leave for the second and subsequent years of work may be granted at any time of the working year in accordance with the order of granting annual paid leaves established by the employer.

The very order of granting paid vacations is determined annually in accordance with the vacation schedule approved by the employer, taking into account the opinion of the elected body of the primary trade union organization, no later than two weeks before the start of the calendar year.

Article 123 of the Labor Code of the Russian Federation expressly states that the vacation schedule is mandatory for both the employee and the employer. The employee does not have the right to refuse to go on annual paid leave in accordance with the vacation schedule, if the employer complied with the notice period for its start (no later than two weeks before the start date of the vacation (Article 124 of the Labor Code of the Russian Federation). If the employer properly (against signature) notified the employee about the start of the vacation, paid the employee “vacation pay”, and the employee refuses to go on vacation in accordance with the schedule, then the employer has the right to “force” send the employee on vacation, and in case of his refusal, apply disciplinary measures to such an employee penalties for violation of labor discipline.

Thus, the employee must use the annual paid leave in accordance with the vacation schedule, and the employer is obliged to provide it during this period.

The legislation provides for the possibility of transferring vacation to the next working year under certain circumstances. Thus, in accordance with part three of Article 124 of the Labor Code of the Russian Federation, in exceptional cases, when the provision of leave to an employee in the current working year may adversely affect the normal course of work of an organization, an individual entrepreneur, it is allowed, with the consent of the employee, to transfer the leave to the next working year. At the same time, leave must be used no later than 12 months after the end of the working year for which it is granted.

The year is coming to an end, and many have not been on vacation. It seems to be voluntary. However, some workaholics at the end of the year receive an ultimatum: "Urgently on vacation, or everything will burn down!" Is it amateur performance or can the employer really send you to rest forcibly?

By law, it can, but this does not mean at all that you are obliged to regularly go on vacation every year. On the other hand, if you did not take it for two years in a row, your bosses may suffer, even if it was not they who left you without legal rest, but you yourself deliberately refused.

“Under Article 124 of the Labor Code of the Russian Federation, it is prohibited not to provide annual paid leave for 2 consecutive years, as well as not to provide leave to employees with harmful working conditions and those under 18 years old,” explains lawyer Galina Enyutina, specialist of the Center for Social and Labor Rights. - At the same time, the employee himself is not at all obliged to monitor its use - this is the obligation of the employer.

Accordingly, for you, if you do not take a vacation for two years in a row, there can be no negative consequences, but the employer can be held administratively liable. Thus, a guilty official may be subject to a fine of up to 5,000 rubles, which he will be obliged to pay personally, while a legal entity may be subject to a fine of up to 50,000 rubles. This seems to be not much, but employers are trying to comply with this requirement, since a repeated violation threatens disqualification - deprivation of the right to hold leadership positions.

It turns out that the dream of many workers to save up 3-4 months of vacation, take everything at once and wave it somewhere free, to the pampas, in theory can be realized, but in practice it is unrealistic, because a conscious employer is unlikely to take risks and allow so long to save. Therefore, it is not surprising that in many offices towards the end of the year they begin to pull on employees, providing vacation on a voluntary-compulsory basis. True, there is also a nuance here. Why the employer’s order to “take an urgent vacation” is not entirely legal, Galina Enyutina explains:

- If we approach the issue formally, then the employer must approve the vacation schedule for the year no later than 2 weeks before the start of this year. And the employee is warned in writing about the start time of the vacation no later than 2 weeks in advance. If these conditions are met, then he will have to obey. If not, he may well refuse, if, for example, it is inconvenient for him to go on vacation in November or December, when a long weekend is already on the nose. Another question: what employee, under pressure from the employer, will not sign a paper, which is so convenient for him?

important

An interesting observation: in those organizations where management forcibly sends people on vacation in the winter, the number of sick days increases in the summer.

1. I want to take a full vacation, and the director makes me go first to additional and then to the main one, says that now there is such a law, I work in the public sector. Why can't I take the whole vacation at once?

1.1. Hello! The director is wrong, there is no such law. You can take the entire main vacation plus an additional one.

2. I am an employee of the National Guard, at work they are forced to go on vacation in the winter for the second year in a row, they made a vacation schedule when I was at school, they didn’t familiarize me with it. Where can I complain?

2.1. Vitaly, well, you can complain to the prosecutor's office. The problem is that you must coordinate any vacation with the employer. And already the employer determines when it is profitable for him to let you go on vacation.

2.2. Where can I complain?
Is it worth spitting against the wind?
Did you sign the oath? Here. Be patient, at first it’s hard, and then it’s within easy reach of retirement.

3. I am forced to go on vacation from January 30, 2019, for the period from 10/01/2018 to 10/01/2019, it turns out in advance, I don’t need a vacation now, can I refuse it?

By agreement between employee and employer annual paid leave can be divided into parts. At the same time, at least one of the parts of this vacation must be at least 14 calendar days.

By agreement between the employee and the employer, annual paid leave may be divided into parts. At the same time, at least one of the parts of this vacation must be at least 14 calendar days.

Recall of an employee from vacation is allowed only with his consent. The unused part of the vacation in connection with this must be provided at the choice of the employee at a time convenient for him during the current working year or added to the vacation for the next working year.

Employees under the age of eighteen, pregnant women and employees employed in jobs with harmful and (or) dangerous working conditions are not allowed to be recalled from vacation.

30. I am a teacher of additional education. The administration makes you go on vacation without pay in June, arguing that the educational process is over. To the statement that I will be engaged in methodical work, he replies that everything had to be done during school hours. I don’t want to lose a month of work experience and a salary. Tell me, please, how to be.

30.1. Contact the labor inspectorate, Olga Valentinovna. Your administration is wrong.

30.2. only with your consent can they be sent on vacation without pay - see the whole procedure in Art. 74 TK

31. Does the employer have the right to force you to go on vacation? If the employee does not want Forced because of the large number of non-holiday days. At the end of the year, they do not pay for non-vacation days, but transfer them to the new year. Have the right to transfer, not pay?

31.1. Vacations must be granted in accordance with the approved vacation schedule. The schedule is mandatory for both the employee and the employer. Art. 123 of the Labor Code of the Russian Federation. They are obliged to use vacations in accordance with the sequence established by the employer in the schedule.
At the end of the year, you are not required to pay anything for unused vacations. Replacing vacations with monetary compensation is provided for by law, but only at the discretion of the employer and in the part exceeding 28 calendar days annually. Art. 126 of the Labor Code of the Russian Federation. In other words, if you do not have an extended vacation of more than 28 days and there is no additional, then no compensation. For all unused vacation days, the employer is obliged to pay compensation only upon dismissal (Article 127 of the Labor Code of the Russian Federation). The transfer of the planned vacation to another working year is possible only with the consent of the employee in accordance with Art. 124 of the Labor Code of the Russian Federation. If the employee asks to postpone the date of the scheduled vacation, then this issue is decided at the discretion of the employer, again by virtue of Art. 123, 124 of the Labor Code of the Russian Federation.

32. The employer forces you to go on vacation according to the schedule. Do I have the right to refuse?

32.1. Hello. The vacation schedule is mandatory for both the employer and the employee. Only by agreement with the employer.

32.2. No. You don't have the right. The vacation schedule is mandatory for both the employer and the employee (Article 123 of the Labor Code of the Russian Federation).

32.3. The vacation schedule is mandatory for both the employer and the employee. You can ask to transfer the vacation to another period

Art. 123 Labor Code of the Russian Federation

(As amended by Federal Law No. 90-FZ of June 30, 2006)
(see text in previous edition)

(As amended by Federal Law No. 90-FZ of June 30, 2006)
Labor Code of the Russian Federation, Article 123. Order of granting annual paid holidays

Guide to personnel issues. Issues of application of Art. 123 Labor Code of the Russian Federation

The sequence of granting paid vacations is determined annually in accordance with the vacation schedule approved by the employer, taking into account the opinion of the elected body of the primary trade union organization no later than two weeks before the start of the calendar year in the manner established by Article 372 of this Code for the adoption of local regulations.
(As amended by Federal Law No. 90-FZ of June 30, 2006)
(see text in previous edition)
The vacation schedule is mandatory for both the employer and the employee.
The employee must be notified against signature of the start time of the vacation no later than two weeks before the start of the vacation.
(As amended by Federal Law No. 90-FZ of June 30, 2006)
(see text in previous edition)
Certain categories of employees, in cases stipulated by this Code and other federal laws, are granted annual paid leave at their request at a time convenient for them. At the request of the husband, annual leave is granted to him during the period when his wife is on maternity leave, regardless of the time of his continuous work with this employer.
(As amended by Federal Law No. 90-FZ of June 30, 2006)

33. I work at an enterprise for 6 months, they force me to go on vacation, but I don’t need it, I can refuse.

33.1. Hello. You have the right not to explain anything.

33.2. You can transfer. Article 124. Extension or postponement of annual paid leave

GUARANTEE:
See Encyclopedias and other comments on article 124 of the Labor Code of the Russian Federation

34. The salary has been delayed for three months already and they are also forced to go on administrative leave. How to do it right so that you get your money and stay in your position without subsequent dismissal?

34.1. To fulfill their labor duties in full, avoiding violations of labor and production discipline, in order not to give the administration a reason to impose a disciplinary sanction and subsequent dismissal.
At the moment, if there is a long delay in the payment of wages, you have the right, by notifying the employer in writing, to suspend work until the full repayment of wage arrears.

35. Please my spouse is on annual leave until January 26th his employer is forcing him to go on regular leave from February 1st i.e. After two working shifts again on vacation! Looks like he's going on vacation! Vacation according to the schedule was made by the personnel officer! My husband went to the personnel department and wrote an application for refusing this leave with the provision of it in half a year for family reasons, they require him to write down what kind of family circumstances! Is this requirement legal with the provision of any certificates? And does he have the right to refuse this vacation? What articles of the TKRF can be relied upon in this situation?

35.1. The vacation schedule is mandatory for both the employer and the employee.
Art. 122 of the Labor Code of the Russian Federation.
Paid leave must be granted to the employee annually.
Art. 123 of the Labor Code of the Russian Federation.
The sequence of granting paid vacations is determined annually in accordance with the vacation schedule approved by the employer, taking into account the opinion of the elected body of the primary trade union organization no later than two weeks before the start of the calendar year in the manner established by Article 372 of this Code for the adoption of local regulations.
The vacation schedule is mandatory for both the employer and the employee.
The employee must be notified against signature of the start time of the vacation no later than two weeks before the start of the vacation.
Art. 124 of the Labor Code of the Russian Federation.
Annual paid leave must be extended or postponed for another period determined by the employer, taking into account the wishes of the employee, in the following cases:
temporary disability of an employee;
performance by the employee during the annual paid leave of state duties, if for this purpose the labor legislation provides for exemption from work;
in other cases provided for by labor legislation, local regulations.
If the employee was not timely paid for the annual paid vacation or the employee was warned about the start time of this vacation later than two weeks before it began, the employer, upon a written application from the employee, is obliged to postpone the annual paid vacation for another period agreed with the employee.
In exceptional cases, when the provision of leave to an employee in the current working year may adversely affect the normal course of work of the organization, individual entrepreneur, it is allowed, with the consent of the employee, to transfer the leave to the next working year. At the same time, leave must be used no later than 12 months after the end of the working year for which it is granted.
It is prohibited not to grant annual paid leave for two consecutive years, as well as failure to provide annual paid leave to employees under the age of eighteen and employees employed in jobs with harmful and (or) dangerous working conditions.

36. I work in a company, schedule 2/2. Our vacation is divided into 2 parts. The employer forces you to go the second part of the vacation from the day off. Does he have the right to do so? The holiday schedule does not specify a certain number of holidays.

36.1. Going on vacation from a day off is a violation of the Labor Code of the Russian Federation. You should contact the labor inspectorate

37. Forced to go on vacation in half a year, but I want to in a year. What to do?

37.1. break the vacation into two parts.

38. I have unpaid leave at work for this year, they force me to go on vacation, but I don’t want to, can I demand that instead of vacation I be paid in money. Is this provided for by articles in the labor code of Russia.

38.1. If over 28 days.

38.2. Compensation for unspent leave is provided only upon dismissal

39. I am a military woman with a child under 14 years old. divorced. .I am forced to go on vacation on the holidays of the new year, motivated by the fact that I am a paramedic of the battalion of cadets and must go on vacation when the cadets go on vacation. What should I do?

39.1. Vacation must be in accordance with the vacation schedule.

40. What to do if the employer forces you to go on vacation without pay? Thank you.

40.1. It all depends on your contractual relationship, if you work according to the usual Td, then completely without content - it seems doubtful.

41. I work in the children's world and I'm going on vacation. Work two through two on vacation forced to go from my weekend what to do.

41.1. Complain to the labor inspectorate.

41.2. Vacations are provided according to the vacation schedule, which is mandatory for both the employee and the employer in accordance with Article 123 of the Labor Code of the Russian Federation. Leave is granted in calendar days. The start date can fall on both a working day and a weekend according to the schedule.

42. At our enterprise, two employees are forced to go on forced leave without saving salaries, motivated by the lack of orders and revenue during this period. According to the vacation schedule, vacation is scheduled for another period. What is wrong with the employer?

42.1. Hello. In that he is obliged to pay for downtime in accordance with Article 157 of the Labor Code of the Russian Federation. File a complaint with the GIT

43. In May, I will be fired due to redundancy, and in April they will force me to go on another vacation. Do I have the right to refuse it? What do I prefer vacation or work?

43.1. it does not matter the procedure must be carried out in accordance with the law

44. What to do if the commander of the unit forces you to go on the main vacation during the study leave.

44.1. Write a complaint to the labor inspectorate

45. We are forced to go on administrative leave at our own expense from December 25 to January 12. They ask you to write a statement. But I can't and don't want to. I have two minor children. What to do in such a situation?

45.1. Don't write anything. Go out to work.

46. ​​I am forced to go on vacation without my desire. What to do?

46.1. do not go on vacation, you have the right to complain to the labor inspectorate.

47. I am forced to go on vacation without my desire. What to do.

47.1. threaten at work that you will complain to the prosecutor's office.

48. I am an employee of the Department of Internal Affairs, I am forced to go on annual leave until the 10th day of each month, they refer to an order that no one has seen and they do not allow the division of vacation, tell me, are the requirements of the management legitimate?

48.1. illegally - vacation must be according to a schedule that is approved at the beginning of each year - and the fact that there is nowhere until the 10th day - you can share - Art. 122, 125 of the Labor Code

49. I got a job in December 1993. I went on vacation in the summer for 20 years, and now they are forced to go in November or break it into pieces. Is it correct?

49.1. Hello Egor. By law, they do not have the right to force you to go on vacation, when it is beneficial for the boss. But since it is not clear from your question what this is connected with, it is not possible to answer your question in more detail.

50. I work every three days. I want to go on vacation. The boss makes you go on vacation on the first day after the shift. Are his claims correct? Is this my weekend?

50.1. Legal.

"Article 123. Order of granting annual paid holidays
The sequence of granting paid vacations is determined annually in accordance with the vacation schedule approved by the employer, taking into account the opinion of the elected body of the primary trade union organization no later than two weeks before the start of the calendar year in the manner established by Article 372 of this Code for the adoption of local regulations.
The vacation schedule is mandatory for both the employer and the employee.
The employee must be notified against signature of the start time of the vacation no later than two weeks before the start of the vacation.