Can an employee take leave only for weekdays, excluding weekends, by writing two applications? Is it possible to divide vacation, excluding Saturday and Sunday weekends? Vacation without days off
As you know, by agreement between the employee and the employer, vacation can be divided into parts.
At the same time, some employees show savvy, gaining additional days of rest at the expense of the material component, or, on the contrary, choose money, losing days of rest.
We are talking about weekends. Some people prefer to take paid leave for Saturday-Sunday in order to receive vacation pay for the weekend.
And someone, on the contrary, asks for vacation from Monday to Friday, so that after spending 5 days of vacation, they actually rest for 7 days.
This is exactly what an employee of the organization where the reader of our forum works as an accountant did.
Despite the fact that the employee’s request does not contradict the Labor Code, the employer is outraged. After all, in this way the employee artificially increases the number of working days of vacation while maintaining a constant number of calendar days. If, in general, 28 days of vacation include 20 workdays and 8 days off, then this savvy employee's vacation will consist of 24 workdays and 4 days off.
How to explain to an employee that if he writes a statement from Monday to Friday, then his vacation is considered from Monday to Sunday? what to refer to?Participants in the discussion on our forum explained to the accountant that there was no crime in such an employee’s request. Formally, the employer may refuse to divide the vacation into parts, but why not accommodate the employee, especially since this will not require additional costs from the employer.The schedule is drawn up after the fact, because before the New Year no one knows when they will go on vacation. the new employee began to cheat and it turns out that his vacation will be longer by 8 calendar days. The employer does not agree with this. What should I do?
This is how our regular reader explained the essence of such a scheme:
The employer simply doesn't understand the point.You can join the discussion in the forum topic "".The employee's vacation in all cases (in any combination) will be only 28 calendar days.
The only difference will be the number of working days per year. This employee will have slightly fewer working days per year than the other. Well, that means that will receive proportionately less salary. That is, it’s about the same as taking a 4-day vacation.The employer will not suffer any material losses from this. So, can 4 working days during the year (for which the employee does not receive money) affect the “fulfillment of the plan”?
Does your company practice such a creative division of vacation into parts - without taking weekends or vice versa, only on weekends?
Every employee has the right to annual leave. In general, the duration of vacation is 28 calendar days. Vacation can be used at one time or divided into parts. In this case, division into parts is possible only by agreement of the parties and taking into account that one part of the vacation must be at least 14 calendar days. There are no other restrictions in the law and all other conditions for granting leave are decided by the employee and the employer by mutual agreement. This follows from the provisions of Chapter 19 of the Labor Code of the Russian Federation.
Depending on how the vacation is used, the employee can either extend the days of idleness in the working year, or, on the contrary, minimize such days and get a chance to earn more.
For example, an employee works a five-day shift and wants to actually rest for two weeks: from August 1 to August 14, 2013. Let's consider all the possible ways to arrange such a vacation:
1. The employee writes a statement for 14 calendar days of vacation: from 1 to 14 August. In this case, he receives 14 days of vacation pay and spends half of his legal vacation. In practice, this is the most common case of granting leave and the likelihood of lengthy negotiations with the employer regarding such granting is minimal.
2. The employee writes a statement 16 calendar days vacation a: from June 29 to August 14. In this case, the employee actually rests the same number of days, but spends more vacation days, receiving additional vacation pay for them, as well as the opportunity to work two extra days a year and, in general, receive a salary for them. This option is suitable for workaholics or for those who are more interested in making money than in taking days off. Management, as a rule, does not object to this approach and will gladly sign the application, unless the company is famous for frequent downtime.
3. The employee writes a statement for 12 calendar days of vacation: from 1 to 12 August. In fact, the same number of days of rest, but obviously saving vacation days to the detriment of receiving a larger amount of vacation pay. Thus, workers are trying to increase the number of rest days in the working year so that, if possible, they can rest all calendar weekends in the general manner and plus their legal vacation days. If the employer is not against this approach, then registration is possible. But usually, already at this stage, you can encounter objections and a proposal to issue a leave in the general order for 14 calendar days, including weekends, since it is usually not profitable for the employer to lose an employee for an extra two days.
4. The employee writes two applications for 5 days of vacation: from 1 to 5 and from 8 to 12 August. The actual number of vacation days still does not change, and the savings in calendar days of vacation for the employee will be maximum - 4 days (14 - 5 - 5)! That's almost a whole week of rest! An employer can agree to such registration only in special circumstances. Either he does not have work for the employee and it is in the interests of the employer that he rests as long as possible during the working year. Or the employee is so valuable that the employer agrees to any of his demands, incl. extend the actual number of non-working days per year.
Let me remind you that all these options are possible only by agreement. If it is not possible to reach an agreement, then the employer is generally obliged to provide full leave during the period specified in the vacation schedule, and the employee to use such leave.
It also happens that an employee does not apply for vacation, and the employer is not eager to part with him even for a couple of weeks. This situation is most often typical for managers or especially valuable personnel, the greatest difficulties arise with replacing them during vacation. In this case, vacations are accumulated and in order to avoid liability for failure to provide vacations, employers have a question: Is it possible, by agreement with the employee, to write off accumulated vacation days for weekends?, that is, periodically issue the employee with leave on Saturday and Sunday?
The situation with this design is as follows. As is known, annual leave is provided in calendar days, not working days. Therefore formally Labor Code of the Russian Federation does not prohibit the provision of vacation days on weekends: Saturday and Sunday, to an employee who works a five-day week and agrees to such registration. The main thing is that the remaining 14 days of annual leave are used at a time.
At the same time, it should be noted that weekend And vacation- these are different types of rest time, and one of them does not replace the other ( Articles 106, 107 of the Labor Code of the Russian Federation). Upon registration of vacation for weekends
- deprives the employee of the opportunity to fully use all types of rest time provided for by labor legislation,
- and thereby increases the actual working hours of the employee in the working year ( para. 12 hours 1 tbsp. 21, part 1 art. 91 Labor Code of the Russian Federation).
By the way, an alternative way to repay unused vacations could be to provide them with the parallel execution of a civil law contract for the vacation period. You will find more information about the procedure for completing documents in such a situation, as well as answers to other equally pressing questions related to the provision of vacations to employees in the collection of materials “Everything about vacation 2013!” from the editors of KSS "System Personnel".
An employee's vacation days can include both weekends and holidays. As for paid vacations, the Labor Code gives a clear explanation - such days are not included in the number of calendar days of vacation if they fall during the vacation period (Labor Code of the Russian Federation, Article 120, Part 1). What to do if you go on vacation at your own expense?
In accordance with the Labor Code, non-working holidays will not be included in the following types of vacations (Labor Code of the Russian Federation, Article 120, Part 1):
- Annual basic paid.
- Annual additional paid.
The provisions of the above article of the labor code do not include rules for leave at one’s own expense; accordingly, in this case it does not apply to him.
With regard to weekends, labor legislation does not provide for a restriction on including them in the period when an employee spends both paid and vacation at his own expense.
In connection with the above, if an employee is granted leave at his own expense, it is necessary to take into account non-working holidays and weekends.
Please note that the length of service required for annual paid leave depends on the duration of the leave at your own expense. In this case, the length of service will include the number of vacation days provided at one’s own expense, but not exceeding 14 calendar days during the year (Labor Code of the Russian Federation, Article 121, Part 1).
Accordingly, if an employee takes more calendar days per year than 14, then the excess is not included in the length of service, which entitles him to annual paid leave.
In order for an employee to avoid increasing the number of days of vacation required at his own expense, it is necessary to divide it into parts, not including days off and holidays.
Example
The employee plans to take vacation at his own expense from April 29, 2015 to May 13, 2015 (15 calendar days). Solution of the problem
In order to exclude extra days from vacation that fall on weekends and non-working holidays, you should divide it into parts. In accordance with, the country is on vacation from May 1 to 4 and from May 9 to 11. Therefore, it is better to write a vacation application in the following order: from April 29 to 30; from 5 to 8 and from 12 to 13 May. In this case, the duration of the vacation will be 8 days instead of 15.
You might also find it useful
.
.
Good afternoon Question regarding employee leave. The employee writes an application for leave for 1 day (April 12, 2013 - Friday) and a second application for 3 days (from April 15 to April 17, 2013 - Monday-Wednesday), can the employer provide the employee with leave minus days off for these two written statements by the employee? Thank you.
Answer
An employee can take annual leave of a total duration at one time or take several vacations a year. That is, by agreement between the employee and the organization, vacation can be divided into parts. At the same time, at least one of the parts of the divided vacation must be at least 14 days. To do this, it is enough to reflect the date of granting each part of the vacation in the vacation schedule.
We also note that granting vacation to an employee only on weekdays does not contradict the requirements of labor legislation, since vacations are calculated in calendar days, and vacation days can fall on both working days (any number of them from one to five), and on working and weekend. It is not necessary to take vacation for the whole week (including weekends).
However, if the employer does not agree to provide leave only on weekdays, he has the right to refuse the employee, and the latter does not have the right to independently go on leave for the time that he has determined for himself, since the division of leave into parts occurs by agreement of the parties. In addition, the provision of leave is regulated by a schedule that both the employer and the employee are required to comply with. Therefore, the procedure for granting vacations should be determined at the scheduling stage.
Also, in order to avoid conflict and controversial situations in this regard, the procedure for dividing vacations should be prescribed in a local act (for example, in the Regulations on Vacations), including the procedure and possibility of dividing vacations.
Thus, we can say that you can provide this employee with vacation minus days off (i.e., one on April 1; on the second application, from April 15 to April 17).
Details in the System materials:
Answer: What is the duration of annual paid leave?
An employee can take annual leave of a total duration at one time or take several vacations a year. That is, by agreement between the employee and the organization, vacation can be divided into parts. There is no need to complete any additional documents. It is enough to reflect the date of granting each part of the vacation in the vacation schedule.
At least one part 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 he has the right to use even a few days of vacation from the remaining half.
This procedure for dividing annual leave into parts is provided for in the Labor Code of the Russian Federation.
An example of dividing annual basic leave into parts
With the permission of the organization’s administration, accountant V.N. Zaitseva, whose vacation is 28 calendar days, decided to divide her vacation time into several parts. She's taking a vacation:
- from January 16 to January 18 inclusive (3 days);
- from March 12 to March 17 inclusive (6 days);
- from July 2 to July 18 inclusive (17 days);
- from August 1 to August 2 inclusive (2 days).
Providing vacation to an employee from Monday to Friday (for five working days) does not contradict the requirements of labor legislation, since vacations are calculated in calendar days, and vacation days can fall on either working days (any number of them from one to five), or and on weekdays and weekends (). It is not necessary to book a vacation for the whole week. With this use of vacation, the employee will actually increase the total number of days of rest per year due to the weekends following the vacation.
At the same time, if the employer does not agree to provide leave from Monday to Friday, he has the right to refuse the employee, and the latter does not have the right to independently go on leave for the time that he has determined for himself, since the division of leave into parts occurs by agreement of the parties ( ). In addition, the provision of leave, which both the employer and the employee are required to observe (). Therefore, the procedure for granting vacations for five or seven days should be determined at the scheduling stage.
Also, in order to avoid conflict and controversial situations in this regard, the procedure for dividing vacations should be prescribed in a local act (for example, in the Regulations on Vacations), including the procedure and possibility of dividing vacations ().
Situation: Is it possible to provide an employee with weekend leave?
By agreement between the employee and the employer, annual paid leave can be divided into parts. Moreover, at least one of the parts of this vacation must be at least 14 calendar days (). Annual leave is provided in calendar days, not working days. Thus, it does not formally prohibit the provision of vacation days on weekends, such as Saturday and Sunday, to an employee who works under a standard five-day work week. In such a situation, the employee receives paid rest days and the opportunity to work more days a year and, accordingly, receive a salary for these days in the general manner. It is important that both the employee and the employer agree to use vacation in this mode.
At the same time, it should be noted that weekends (weekly continuous rest) and vacation are different types of rest time, and one of them does not replace the other (Article, Labor Code of the Russian Federation). In fact, taking leave on weekends deprives the employee of the opportunity to fully use all types of rest time provided for by labor legislation, and thereby increases the actual duration of the employee’s working time in the working year (, Labor Code of the Russian Federation). In this regard, regularly providing vacation on weekends may cause complaints from inspectors.
Based on the above, in order to avoid a controversial situation and claims from the labor inspectorate, it is not recommended to regularly provide an employee with weekend leave.
Nina Kovyazina, Deputy Director of the Department of Education and Human Resources of the Russian Ministry of Health
It is possible, but according to Article 123 of the Labor Code, vacations are provided in accordance with the vacation schedule and, accordingly, if according to your vacation schedule it is divided in this way, then the employer does not have the right to refuse. And outside the schedule, only by agreement with the employer.
§ 1. Article 8 of ILO Convention No. 132 (revised 1970) provides that the division of annual leave with pay into parts may be authorized by the competent authority or other appropriate authority in each country. One of these parts of leave must consist of at least two continuous working weeks. In full accordance with ILO Convention No. 132, Part 1 of Art. 125 TK.
§ 2. In part 1 of Art. 125 provides for the possibility of dividing annual paid leave by agreement between the employee and the employer.
Essentially the same procedure is provided for the division of annual paid leave provided to prosecutors, investigators, scientific and teaching staff of the prosecutor's office of the Russian Federation. The division of leave into parts is carried out at the request of the named employees with the consent of the administration (see Federal Law "On the Prosecutor's Office of the Russian Federation" as amended on November 17, 1995, as amended and supplemented // SZ RF. 1995. N 47. Art. 4472; 1999. N 7. Art. 878).
In a slightly different order, at the request of workers in the coal, shale, mining industries and certain basic sectors of the national economy, it is possible to divide the annual paid leave granted to them into parts. Moreover, the duration of one of them should not be less than two weeks (see Decree of the Government of the Russian Federation of July 2, 1990 N 647 “On increasing the duration of vacations for workers in the coal, shale, mining industries and certain basic sectors of the national economy” // SZ RF. 1990 No. 16, Article 85).
§ 3. The Code does not determine the number of parts into which leave can be divided. It is important that one of them is at least 14 calendar days.
The Code does not resolve the issue of how to correlate the use of vacation in parts with the obligation to determine the time of granting vacations in an appropriate schedule. If you change the schedule each time to provide the possibility of using vacation in parts, then this local regulatory act ceases to determine the timing of the provision of vacations throughout the year.
In addition, changes to the schedule must be made in the same order in which it is approved, taking into account the opinion of the representative body of workers (see Part 1 of Article 123 of the Labor Code). Providing leave in parts on the basis of an individual agreement between the employee and the employer may negatively affect the vacation schedule and its legal force in relation to those employees who have expressed a desire, in agreement with the employer, to use leave in parts.
Practice solves this issue in different ways. In some organizations, in cases of dividing vacation into parts, changes are made to the vacation schedule, in others - not. Naturally, you should always keep strict records of vacation days granted and used by the employee. The way out of this difficult situation is to create a schedule for the main part of the vacation and an additional schedule for using vacation in parts, if this is known in advance.
§ 4. While protecting the employee’s right to long, uninterrupted rest, the Code (Part 2 of Article 125) allows for the possibility of recalling him from annual paid leave only with his consent. In this case, the employee does not lose the unused part of the vacation. It must be provided to the employee of his choice at a time convenient for him during the current working year or added to the vacation for the next working year.
§ 5. The recall of an employee from vacation is determined by a written order (instruction) of the employer, on which (or separately) the employee’s consent is expressed in writing. The same order (instruction), based on a written application from the employee, resolves the issue of the time for which the unused part of the vacation is transferred.
§ 6. An employee’s refusal to go to work in connection with his recall from vacation is not a violation of labor discipline and cannot lead to the application of disciplinary measures against him.
The Plenum of the Supreme Court of the Russian Federation in Resolution No. 2 of March 17, 2004 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” explained that since the law provides for the right of the employer to early recall an employee from leave to work only with his consent (Part 2 of Art. 125 of the Labor Code), an employee’s refusal (regardless of the reason) to comply with the employer’s order to go to work before the end of the vacation cannot be considered a violation of labor discipline (see paragraph 37).
§ 7. Recall from vacation entails recalculation of wages. Typically, wages for the period of unused vacation are counted against the wages that the employee must receive upon returning to work. When an employee receives an unused portion of vacation, payment for this period is calculated again.
§ 8. It should be noted that the Code (Part 3 of Article 125) does not allow the recall of a number of categories of employees from vacation.