Who is entitled to leave at their own expense and how to get it

Who can take it

The list of persons who can go on vacation without keeping their wages is prescribed by the Labor Code of the Russian Federation No. 197 of January 30, 2001, in Art. 128 paragraph 2. The following employees are required to be allowed to rest upon expressing their desire:

1. Participants of the Second World War.
2. Old age pensioners who continue to work.
3. Family members of military personnel and employees who died in the performance of duties or from injuries received in service.
4. Disabled people who work.
5. All employees at the birth of a child, marriage, burial of a blood relative.

In the Labor Code of the Russian Federation, Articles 173 and 174 provide the following additional list of persons who should be given leave without pay:

• employees entering universities and professional educational institutions;
• persons who work and study at universities at the same time;
• for those who combine work and study at a university, secondary specialized educational institution or for the period of certification.

If an employee combines positions, the second leave for a non-main position may be shorter; he has the right to ask for days at his own expense so that the terms in both jobs are equal.

Payment

When a crisis occurs and a company has no money, paying employees becomes difficult. There are forced options with loans, but there are no guarantees that these loans will be returned later or that the crisis will not drag on. Therefore, when there is no money, payment for forced leave at the initiative of the employer is not made. There are other cases when an employee loses his earnings, for example, during the period of suspension from work due to failure to undergo a medical examination - the employer is obliged not to allow the employee to perform labor functions for the entire period of non-compliance with all the necessary medical, qualification and/or other conditions provided for this position. But these cases are private, not forced and do not affect the long term during a crisis.

By agreement with the employer

For personal reasons or other justifications, when an employee applies, the manager may place him on administrative leave. This is possible if an agreement is reached between the parties, but is not an obligation for the employer. Therefore, both the objectivity of the identified reasons and the damage that may be caused to the labor process due to the employee’s absence from the workplace are taken into account.

The justification that is written in an employee’s application for leave without pay is private information about the person. The employer is obliged to preserve this personal information in accordance with the law adopted on July 27, 2007 No. 152. Personal reasons include significant events and needs, but the employer does not have the right to send employees on such leave at his own whim.

Procedure for applying for administrative leave

In order to get several paid days to rest or solve problems, you must:

• contact management in writing;
• provide evidence of necessity;
• wait for the order to be issued, familiarize yourself with it;
• leave for a few days.

The entire procedure may take one business day.

Analysis of the validity of an application for leave

Those categories of workers, the list of which is given in Art. 128 of the Labor Code of the Russian Federation and other regulations, may apply for administrative leave at any time. But it is recommended to notify management of your intention in advance. This is necessary in order for a replacement to be found for this period.

If there are no legitimate reasons, but there is a need, you need to talk to management and give a full explanation. For example, you need to visit a doctor or submit documents to register ownership of a newly purchased apartment. As a rule, management takes the position of its employees and gives them the opportunity to take a few unpaid days off.

Determining the duration of vacation: sample

Typically, the employee himself determines the duration of his absence from the workplace. But it is necessary to talk with management and discuss this point. After the parties come to an agreement, the employee writes a statement in which he indicates the period of his absence. For example, like this:

Application for leave

You must specify:

• position and full name of the head of the enterprise;
• abbreviated name of the enterprise;
• position and full name of the applicant;
• request for leave;
• period of absence;
• reason for absence;
• date and signature.

It is recommended that you complete the application by hand. If necessary, supporting documents can be attached. For example, a referral to a doctor or a death certificate for a close relative.

Important! If the leave is taken out due to a wedding or the birth of a child, it is recommended to bring copies of documents. Certificates are not issued immediately, but only after registration of the fact. Therefore, when writing an application, these papers may not be on hand.

Consideration and acceptance of the application

If the duration of unpaid leave is not discussed in advance, the employer has the right not to accept the application. An exception is the circumstances and categories of workers prescribed in Art. 128 Labor Code of the Russian Federation.

Based on the application, an order is issued for the enterprise. The employee must familiarize himself with it against signature. When this happens, the HR employee will need to note this on the time sheet.

Providing leave

After the order has been signed and the employee has read it, there is no need to go to work. If the procedure is not followed, the employer may count these days as absenteeism. If there is a supporting document, dismissal will not follow, but there will be a trial.

Documentary support

If the parties agree, the employee draws up an application according to the sample. It must contain the following mandatory parts:

• to whom: the position of the chief, his last name, initials and name of the organization;
• from whom: position, structural unit, full name of the employee;
• the main part, which describes the period and reason;
• Below is the current date, signature and surname with the initials of the employee.

The immediate supervisor and director put their signature and consent on the application form. With the consent of all parties, an order or instruction is issued according to the model adopted by the institution on letterhead or with the obligatory indication of the organization’s details. It must contain the following mandatory data:

• Full name of the employee;
• cause;
• the date when the employee goes on leave and the duration of the period.

The information is entered into the personal card and the work sheet. The employee is familiarized with the order under his personal signature.

The period of administrative leave is specified in Article 128 for those to whom it is granted immediately upon application. The rest of the employees coordinate the period directly with their superiors. The employee may return to work before the expiration of the period specified in the application. The time and period for registration of this type of vacation is not associated with annual paid leave and other additional days off.

Accounting Features

An employer cannot send employees on unpaid leave when there is downtime at the enterprise, there are no orders, or for other reasons. Administrative leave is a personal initiative, and coercion on the part of an employee to write a “voluntary” statement will entail punishment for officials or founders of the enterprise. In the Code of Administrative Offenses in Article 5.27 the following material penalties are prescribed for this:

• for officials 1000-5000 rubles;
• for individual entrepreneurs 1000-5000 rubles or suspension of work for up to 90 days;
• for legal entities 30,000-50,000 or administrative suspension of work for up to 90 days.

If the situation is repeated, then an administrative fine cannot be imposed on officials; a preventive measure in the form of professional disqualification for a period of 1 to 3 years is applied to them.

When an enterprise cannot give work to its team, it is obliged to recognize downtime, and for this time the employees will be paid in an amount of no less than 2/3 of the established salary.

If an employee takes leave without pay for a period of up to 14 calendar days, then it is included in his work experience. All days do not have to be consecutive, it can be the total number of days without pay during one year. When administrative leave exceeds 14 days for the current calendar year, then next year annual leave with pay will be postponed by the same number of days, in excess of 14. This is stated in Art. 121 Labor Code of the Russian Federation.

The calculation of periods of work that gives the right to proportional paid rest or compensation upon dismissal is calculated as follows. If an employee’s excess days are less than 15 days, then they are not taken into account in the calculation; if more than half a month, then they are rounded up to the whole month. The number of unspent days of paid leave is calculated based on a coefficient of 2.33 days for each full month worked. Every year, before March 1, accounting employees are required to submit a SZV-experience report, which indicates all the data about employees, periods of time worked, annual paid and non-paid vacations.

Let's sum it up

Regardless of the reasons forcing an employer to send an employee on unpaid leave, this is prohibited by law. Without obtaining consent from a subordinate, such a company policy violates the Labor Code of the Russian Federation and provides for punishment under Art. 5.27 Code of Administrative Offenses of the Russian Federation. In this case, fines can be imposed even for each employee sent on unpaid leave separately. Of course, such a leave is not beneficial for the employee, but in order to maintain “good relations” you should always try to come to a peaceful and legal way to resolve the problem.

Source: "Legal ABC"

Print Ask a lawyer

Tags related to documents: vacation

Maximum term

The number of days that employees can count on is regulated by Article 128 of the Labor Code of the Russian Federation or by mutual agreement of the parties between employers and employees. The deadlines did not change in 2022 or 2022. The data is shown in the table.

All days that the employee spent on vacation without pay are subsequently excluded from the calculation periods to calculate the amount of average earnings, regardless of how many days were unpaid.

Those persons who, according to the Labor Code, are entitled to unpaid leave in accordance with the second paragraph of Article 178, are included in their seniority.

It is important to remember that employers have the right to provide students and persons undergoing training with educational leave with pay.

Staff reduction

If the crisis situation drags on, the employer may try to decide to reduce its staff. In this case, he must comply with all the rules established by law:

• warn subordinates two months before layoffs;
• immediately pay all due income and compensation;
• transmit information to the employment service.

However, we note that legislation and judicial practice do not give an unambiguous answer to the question of how legal it is to “cut” the staff during a period of downtime. This, of course, is convenient for the employer, but can cause legal disputes. Therefore, it is safer to wait until this difficult time ends and immediately start optimizing the staffing table.

Guarantees for the employee during absence from work

During the period of leave without pay, the employee does not lose his place at the enterprise. An employer cannot fire a citizen just like that. This can only happen when the enterprise is liquidated or the activities of the individual entrepreneur are suspended.

When an employee is on unpaid leave, the employer will not pay for his sick leave for the same time. But the employer will pay for sick leave for women in labor, because the employee is on the list of insured persons. In addition, if a woman was on vacation without pay, but urgent sick leave was opened, then the vacation is interrupted from the start date of the sick leave. Funds received for childbirth can be credited to the account linked to any card that the employee indicates. To do this, just indicate the current account where the transfer is to be made.

During the period of administrative leave, employees retain the right to tax deductions. If a citizen has no income at all, then these deductions accumulate.

5 / 5 ( 2 voices)

about the author

Klavdiya Treskova is an expert in the field of financial literacy and investment. Higher education in economics. More than 15 years of experience in banking. He regularly improves his qualifications and takes courses in finance and investments, which is confirmed by certificates from the Bank of Russia, the Association for the Development of Financial Literacy, Netology and other educational platforms. Collaborates with Sravni.ru, Tinkoff Investments, GPB Investments and other financial publications. [email protected]

Is this article useful? Not really

Help us find out how much this article helped you. If something is missing or the information is not accurate, please report it below in the comments or write to us by email

Circumstances under which an employee is granted unpaid leave?

First of all, let's say that an employee can take unpaid leave on his own initiative. The reason for this must be a valid reason, such as the birth of a child, the funeral of a close relative, or, for example, a wedding. However, it is the employer who, at his own discretion, decides to what extent the reason given by the employee can be considered valid. The duration of leave without pay is determined by the parties. This is stated in Art. 128 Labor Code of the Russian Federation.

This is important to know! It is impossible to place an employee on unpaid leave without his consent. This fact is a serious violation of the Labor Code of the Russian Federation.

If an employer forces an employee to go on unpaid leave, the organization will be punished by the State Tax Inspectorate. An employee whose rights are violated has the right to file a complaint with Rostrud and an inspection will be carried out against the company.

To help in such cases, Rostrud launched a special service called “Coronavirus: Hotline.” Here, employees who were forced to take leave at their own expense can receive legal advice. In addition, the employee has the right to file a lawsuit against the employer. The culprit will be forced not only to pay the victim all the money for such a vacation, but also compensation for wages in case of delay.

If you look at the situation from the position of employers, then, of course, in such conditions they are not in the best position. The introduction of restrictions has led to business having to be suspended. Many companies have lost most of their profits, but at the same time, they still have the obligation to pay wages to employees during non-working periods.

Comments: 2

Your comment (question) If you have questions about this article, you can tell us. Our team consists of only experienced experts and specialists with specialized education. We will try to help you in this topic:

Author of the article: Klavdiya Treskova

Consultant, author Popovich Anna

Financial author Olga Pikhotskaya

1. Elena
   01/26/2020 at 17:35 Tell me, does a disabled person with the third disability group have the right to be denied leave without pay or not? Thank you.
   Reply ↓ Klavdiya Treskova
   01/26/2020 at 17:58 Posted by

   In the Labor Code of the Russian Federation, Article 128, paragraph 2, contains a list of persons to whom employers are obliged to provide leave without pay. It also includes working disabled people. To do this, the employee must write an application addressed to the manager, on the basis of which an order will be issued. The duration of such leave for a disabled employee cannot exceed 60 days for the entire calendar year.

   Reply ↓

What to do if management refuses unpaid leave?

In this table we have provided a list of citizens who have the right to leave upon their request. The employer may refuse to provide leave without pay to the remaining categories of employees, and this will be completely legal. If management does not cooperate, then try to explain the reason why leave is required, then perhaps they will give you a positive answer.

There are times when this method does not help. However, this is not a reason for absenteeism, since this will be regarded as absenteeism. If the reasons for going on vacation are very serious and you need a long rest, then you can write a letter of resignation. In judicial practice, there are cases when employees go to court to challenge the employer’s refusal to grant unpaid leave and win the case. However, in this case, we would recommend that you enlist the help of a lawyer.