Is it allowed to replace the vacation with monetary compensation. Features of replacing vacation with monetary compensation. Expert opinion on the issue of replacing leave of public civil servants with compensation

According to the provisions of article 115 of the Labor Code of the Russian Federation, the employer must provide the employee with an annual basic paid leave of 28 calendar days. Certain categories of employees are provided with extended basic leave (i.e., over 28 days). The Labor Code also provides for cases when the replacement of unused vacation days is prohibited. Let's consider this issue in more detail.

According to the provisions of regulatory enactments that establish labor law norms, unused vacation days can be replaced with monetary compensation in the following cases:

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

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

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

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

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

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

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

employees for whom such leave is guaranteed by federal laws (part 1 of article 116 of the Labor Code of the Russian Federation).

The following persons are entitled to extended leave:

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

It should be remembered that for certain categories of workers, the replacement of annual paid compensation with monetary compensation is not allowed. These workers include:

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

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

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

police officers (part 3 of article 45 of the Regulation approved by the Resolution of the RF Armed Forces of December 23, 1992 N 4202-1 "On approval of the Regulation on service in the internal affairs bodies of the Russian Federation and the text of the Oath of an employee of the internal affairs bodies of the Russian Federation").

employees of drug control authorities (clause 105 of the Regulation approved by the Decree of the President of the Russian Federation of 05.06.2003 N 613 "On law enforcement in the authorities for the control of the circulation of narcotic drugs and psychotropic substances");

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

workers exposed to radiation from the Chernobyl disaster.

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

An employee is entitled to additional leave for work in harmful conditions if he actually worked in such conditions for at least 11 months in a working year (paragraph 2, clause 8 of Instruction N 273 / P-20). If he has worked less than this period, then additional leave is provided to him in proportion to the time worked in such conditions (clause 9 of Instruction N 273 / P-20, Letter of Rostrud dated 18.03.2008 N 657-6-0);

Additional leave for work in irregular working hours does not depend on the length of time worked in the working year in the conditions of irregular working hours (Letter of Rostrud dated 24.05.2012 N PG / 3841-6-1);

Registration of monetary compensation for vacation

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

receive a written statement from the employee;

issue an order;

enter information on replacing part of the vacation in the employee's personal card and vacation schedule.

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

Payment of monetary compensation for unused leave upon dismissal

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

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

liquidation of an enterprise;

staff reduction;

transfer to another job at the suggestion of labor authorities;

admission to active military service;

reorganization or temporary suspension of work;

sending in the established order to universities, technical schools (or to preparatory courses of these educational institutions);

unsuitability for work.

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

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

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

time of actual work;

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

the time of forced absenteeism during illegal dismissal or suspension from work and subsequent reinstatement at the previous job;

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

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

The length of service does not include:

the time the employee is absent from work without good reason, including as a result of his suspension from work in the cases provided for;

parental leave until the child reaches the legal age.

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

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

Article 126 of the Labor Code of the Russian Federation allows the replacement of a part of the annual paid leave with monetary compensation, which exceeds 28 calendar days.

But it is important to understand that there is an excess of 28 calendar days. Not everyone reads Article 126 of the Labor Code of the Russian Federation correctly. We are talking about exceeding the leave "not as an existing debt" for previous periods of work, since the employee did not use the vacation in full, but about the annual basic paid leave, the number of days of which is more than 28 days. For example, teachers - they have 56 calendar days of vacation, of which 28 days they have to take a day off, and 28 can be compensated with money or any number of days from this part, disabled people who have 30 days of annual paid leave, 2 of which can be replaced with monetary compensation etc.

The basic law of Russia provides for the inalienable right to rest and guarantees it to every person. It is implemented by:

• compliance with the amount of working time;
• weekends and holidays;
• granting leave.

The principle of the unity and opposition of subjective rights provides for the reciprocal obligation of a person to use his right to recuperate after a working day or a year.

Instead of paid rest, you can get money if you have the right to additional days, dismissals, retirement. Article 115 of the Labor Code of the Russian Federation establishes 28 calendar days - the period that an employee must take a walk, this time increases if at the enterprise:

• harmful and dangerous conditions;
• the special nature of work;
• irregular working day;
• conditions of the Far North and places of this category.

A person can exercise the right to receive financial compensation for additional non-working days, the number of which is established in each case by a separate regulatory act.

Labor Code of the Russian Federation replacement of vacation with monetary compensation

The Code establishes the imperative that only a part of the paid vacation exceeding 28 calendar days can be replaced with money. The days accumulated for the previous period are added to the annual and must be actually used. The fact that a person has the right to certain types of additional leave may give the owner grounds for paying him money.

So, teachers having the right to an extended leave of 56 days can receive 28 of them (56-28 \u003d 28) in the form of compensation.

The procedure for replacing monetary compensation for annual paid leave

The application for payment of compensation is submitted personally to the personnel department, where the authorized employee is obliged to put a corresponding mark on a copy of the document on his admission. The employer's internal regulatory legal acts may establish the procedure for submitting an application to the office.
The structure of such a statement:

• In the upper right corner, the position and passport details of the person in whose name the application is being written are indicated, with the obligatory indication of the correct name of the enterprise;
• The surname of the applicant himself with reference to the position he holds at the time of filing the document;
• The text of the application in which the number of days to be compensated is written with reference to the period and basis;
• Date of compilation and signature of the applicant.

If the employee subsequently leaves or retires, then a separate application is not submitted.
On the basis of the application, the company prepares an order for the payment of compensation, which necessarily indicates the period for which the money is deducted and the number of days that are reimbursed.
Changes may be required to the schedule, which is approved annually by the employer.

Replacement of monetary compensation for vacation for irregular working hours

Some categories of workers, due to the specifics of their job duties, are charged with an irregular procedure for performing functions outside the work schedule. The list of positions with such a nuance is not legally regulated and is approved separately by each employer.
Additional paid rest for overwork cannot be less than 3 days and, at the request of the employee, is compensated by paying in the same manner as the main one.

Replacement of vacation with monetary compensation for pregnant women

A woman, being in a position, has the right to receive annual rest days in full, regardless of the amount of time worked, continuous work experience at the enterprise and the priority according to the schedule.
Concern for the health of the population led in 2006 to a change in the code and it became impossible to receive compensation for a pregnant woman for unused leave.
A person can take days of rest:

• before the onset of the maternity leave, agreeing with the doctor the expected date of issue of the certificate;
• after closing the sick leave issued to the woman in labor;
• before going to work.

From the meaning of Article 126 of the Labor Code of the Russian Federation, it is seen that the cash payment for the unused time can be paid to her only upon dismissal.

Responsibility for violation of this and other labor standards is provided for by Article 5.27 of the Administrative Code of the Russian Federation. The following can be brought to an administrative penalty:

• an official and then the punishment will be a warning or a fine from 1 to 5 thousand rubles;
• individual entrepreneur (fine from 1 to 5 thousand rubles);
• legal entity (fine from 30 to 50 thousand rubles).

Inspection of the relevant supervisory authorities can establish the fact of violation of labor legislation on provision.

Who is prohibited from replacing vacation with monetary compensation?

The state's desire to improve employment conditions, improve the quality of life and health has led to the inadmissibility of refusal of paid rest in the following cases:

• The employee did not walk 28 days a year;
• The woman is in a state of pregnancy;
• Persons under 18;
• Work in harmful and hazardous conditions (chemical, mining, metallurgical, nuclear industry, work in medical institutions, etc.);
• There are special working conditions (divers, underground machinists, on board aircraft, etc.).

These categories of employees can receive compensation only upon dismissal.

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It can be chosen not by days of rest, but compensated by money.

Such cases can be due to both production necessity and the desire of the employee himself. However, it is not always possible to pay compensatory funds for an unaccompanied vacation. Sometimes, regardless of the wishes of the parties, the employee will be obliged to go on a well-deserved rest, for the entire set vacation period, or at least part of it.

All the nuances associated with replacing leave with compensation are spelled out in the Labor Code of the Russian Federation. The employer has no right to deviate from the rules specified in the article, and violations of the established norms may entail serious troubles for the organization. For this reason, it is very important to clearly systematize information about when leave can be replaced, and when a replacement is not allowed in any case.

According to the Labor Code of the Russian Federation, each employee has the right to annual leave, which is granted for a period of at least 28 days and must be paid at the rate of a specific employee. Organizations, however, have the right to increase the set amount of rest at their discretion by an unlimited number of days.

Since the right to rest is still not an obligation, theoretically a person can replace part of his vacation with monetary compensation or even replace the entire amount of rest with money.

Article 126 of the Labor Code of the Russian Federation prescribes that each worker can, at his discretion, claim compensation for a period that exceeds the legalized 28 days. You can make such a replacement regularly, every year. In addition, the legally established amount can be exchanged for money without the obligatory rest. But clear instructions are given that a person cannot remain without rest for more than two years in a row. The employer is simply obliged to ensure that his employees rest for the allotted time at least once every 24 months. Therefore, a complete replacement of vacation with monetary compensation is possible only once every two years. But partial compensation, for the period that exceeds the terms set by the Labor Code of the Russian Federation, is possible at any time, without restrictions.

Who can qualify for compensation?

Procedure for payment of compensation

Accrued payments should be calculated according to the general rules. That is, for their calculation, income is taken for the last 12 months, and if a person has worked less, then for the worked period.

The total amount of earned money is divided by the volume of calendar days and the average salary for one day is obtained.

The average number of calendar days in a month is taken as 29.3. The average daily indicator is multiplied by the number of compensated days, which are indicated in the application and order. The allowance is paid for a calendar day, and not for the equivalent of fallen work shifts for a given period.

The payment procedure differs depending on the situation:

1. When paying in working order, the term for transfers of the calculated amount is not specified in the Labor Code of the Russian Federation. It is recommended to make payments as soon as indicated in the date.
2. If a person leaves, then it is imperative to make the final settlement with him on the last working day.

Together with the vacation compensation, all other unpaid amounts that were earned by the employee for the period worked are also paid.

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New edition of Art. 126 of the Labor Code of the Russian Federation

When summing up annual paid leave or transferring annual paid leave to the next working year, monetary compensation may replace a part of each annual paid leave exceeding 28 calendar days, or any number of days from this part.

It is not allowed to substitute monetary compensation for the basic annual paid leave and annual additional paid leaves for pregnant women and employees under the age of eighteen years, as well as annual additional paid leave for employees engaged in work with harmful and (or) dangerous working conditions for work in appropriate conditions (except for the payment of monetary compensation for unused leave upon dismissal, as well as the cases established by this Code).

Commentary on Article 126 of the Labor Code of the Russian Federation

Article 126 of the Labor Code of the Russian Federation now resolves the question of what part of the leave is to be replaced with monetary compensation in the situation of summing up the vacations for several years, it is proposed to establish that "a part of the annual paid leave exceeding 28 calendar days, upon written application of the employee, can be replaced with monetary compensation ". As a result, the practice of compensating for vacations left by employees from previous years should stop.

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

The recall of an employee from vacation is allowed only with his consent. Such recall may occur for operational reasons. The legislator does not establish the form of such consent. In order to avoid misunderstandings, it is advisable for the employer to obtain such consent from the employee in writing. The recall from the vacation is drawn up by an order (order) of the employer, which, by agreement of the parties, indicates when the employee will be provided with the unused part of the vacation.

The part of the leave that was not used in connection with this must be granted at the choice of the employee at a time convenient for him during the current working year or added to the leave for the next working year.

It is not allowed to recall workers under the age of eighteen, pregnant women and workers employed in jobs with harmful and (or) dangerous working conditions from vacation (Article 125 of the Labor Code of the Russian Federation).

Labor legislation allows for the replacement of annual paid leave with monetary compensation.

The part of the annual paid leave exceeding 28 calendar days, upon written application of the employee, can be replaced with monetary compensation.

When summing up annual paid leave or transferring paid leave to the next working year, monetary compensation may replace the part of each annual paid leave exceeding 28 calendar days, or any number of days from this part.

Another commentary on Art. 126 of the Labor Code of the Russian Federation

1. Article 126 of the Labor Code of the Russian Federation allows the replacement of annual paid leave with monetary compensation. Since monetary compensation can only replace that part of the vacation that exceeds 28 calendar days, replacing part of the vacation with monetary compensation is possible if the employee is entitled to an extended vacation or additional vacation (additional leaves).

2. In the case of the simultaneous granting of leave for two years or more (see Art. Art. 124, Part 2 of Art. 125 of the Labor Code of the Russian Federation and a commentary to them), parts of each annual paid leave exceeding 28 calendar days can be replaced with monetary compensation , or any number of days from these parts. Thus, for each working year, the employee must actually use at least 28 calendar days of vacation.

3. From the text of Art. 126 of the Labor Code of the Russian Federation, it follows that to replace the corresponding part of the vacation with monetary compensation, a written statement of the employee is not enough, the consent of the employer is also required, who can, but is not obliged to replace part of the vacation with monetary compensation.

4. Replacement of annual paid leave with monetary compensation, both basic and additional, for pregnant women and employees under the age of 18 is not allowed.

5. With regard to the replacement of monetary compensation for vacation for workers employed in work with harmful and (or) dangerous working conditions, Part 3 of Art. 126 of the Labor Code of the Russian Federation (as amended by Federal Law of June 30, 2006 N 90-FZ) has created some uncertainty: this rule prohibits monetary compensation for this category of workers only for additional paid leave for work in appropriate conditions, leaving open the question of the possibility of monetary compensation for the main paid leave. holidays and other additional holidays. Based on the requirements of labor protection, monetary compensation for this category of workers on the main paid leave would lead to the loss of the meaning of granting them additional leave for work in harmful and (or) dangerous working conditions.