Recall from vacation due to production needs: how to register

Obtaining the employee’s consent

After the employer decides to recall an employee from vacation, he must inform the employee about this and obtain the latter’s consent to recall from vacation (Part 2 of Article 125 of the Labor Code of the Russian Federation). You can inform the employee in the following ways - by telephone, by telegram, by e-mail, and it is better to document the consent.

Art. 125 of the Labor Code of the Russian Federation does not contain explanations in what form consent to recall from vacation must be given. How to do this, the organization must decide independently.

For example, an organization may notify an employee in writing of its decision to recall him from leave.

The employee, having read such a notice, either refuses to interrupt the vacation or agrees, indicating at the same time how he intends to dispose of the remaining part of it.

This option is also possible. The organization does not contact the employee in writing, and the corresponding notice is not issued. You can call an employee to work by phone, telegram, email, or other method. In this case, the employee expresses his consent to the early termination of vacation in a handwritten statement. In it, he indicates how he intends to complete the days remaining from his vacation, as well as the procedure for settlements with the employer for excess payments received.

How to deal with vacation pay? There are two options: voluntary deposit of overpaid amounts into the organization’s cash desk or their offset against upcoming wages. The employee can reflect all this either directly in the notice to the employer or in a statement written in his own hand. It all depends on how the organization customizes documenting vacation reviews.

How to apply

All workers must take periodic rest. But for a valid reason (production necessity), the employer has the right to interrupt the rest of a subordinate. Only very serious circumstances are considered valid, for example, to eliminate the consequences of an accident or natural disaster, or to replace an employee who is temporarily performing the duties of a vacationer, but who suddenly ends up in the hospital.

It is allowed to issue a call from leave due to production needs in the form of a notification (message) in free form.

Due to production needs and illness of the account manager Sidorova O.G. We ask you to consent to withdrawal from annual paid leave from April 24, 2020.

In accordance with Art. 125 of the Labor Code of the Russian Federation, the part of the vacation unused in connection with the recall will be provided to you at any time convenient for you in the current working year or can be added to the vacation for the next working year at your request.

General Director of Pion LLC Voronov A.V. Voronov

From Art. 125 of the Labor Code of the Russian Federation it follows that calling an employee for production reasons is allowed only with his consent. And if a person cannot or does not want to go to work earlier than expected, you cannot force him.

In addition, it is strictly prohibited to interrupt the rest of the following persons (even if a production need arises):

• minors;
• pregnant employees;
• workers in hazardous and/or hazardous work;
• combining work and study (in case of additional study leave).

Quite often, employees succumb to the director’s persuasion and agree. In this case, the employer should obtain the employee’s consent to interrupt the rest for production reasons. The employee draws up his consent to go to work in any form, for example, like this:

We make changes to the vacation schedule and personal card

After issuing an order to recall an employee from vacation, changes must be made to the vacation schedule. Since it does not contain a special column for entering information about the employee’s recall from vacation, you can enter information in column 10 “Note”. It should indicate that the employee was recalled from vacation with his consent, indicate the date on which the employee began work in connection with the recall from vacation, and the reason for the recall.

Next, in column 8 “Bases (document)” it is necessary to reflect the details of the order for recall from vacation. In column 9 “Date of proposed vacation” - the date to which the employee’s vacation is transferred if it falls within the current calendar year. If the date to which the vacation is transferred falls on the next calendar year, then nothing needs to be indicated in the schedule.

Information about recall from vacation must also be entered into the employee’s personal card - Form No. T-2 in the “Vacation” section.

In columns 4 and 6 you need to cross out the incorrect dates and number of days with one line and enter the correct information, and in column 7 indicate the details of the order on the basis of which the changes occurred.

The employee’s personal card should reflect the number of vacation days actually used. This is necessary in order to subsequently correctly calculate the number of unused vacation days.

Review from vacation

In practice, situations often arise when an employer needs the presence of an employee on leave at work. For example, an audit came from the tax office, but the chief accountant was not there. Legislation allows an employee to be recalled from vacation due to production needs by interrupting it. Let's consider what conditions of the Labor Code (LC) must be met, how an employee's recall from vacation is formalized, and what liability may arise for violating the procedure for recalling from vacation.

Conditions for recall from vacation

Recall of an employee from vacation is possible if two conditions are met simultaneously <*>:

— employer’s proposals;

- employee consent.

Note! If an employee does not agree to interrupt his work leave, he cannot be brought to disciplinary liability, since this will not be a disciplinary offense. In turn, absenteeism from work in such a situation is not absenteeism.

Recalling certain categories of employees from vacation is prohibited. Even if they agree to interrupt their vacation, recall of employees is not allowed <*>:

- under 18 years of age;

- having the right to additional leave for work with harmful and (or) dangerous working conditions and for the special nature of the work.

Please note that the list of cases in the event of which an employer can recall an employee from vacation is not fixed by law. The specific circumstances under which recall from vacation is permitted may be contained in a collective agreement <*>. At the same time, this does not mean that an employee cannot be recalled from vacation with his consent if a collective agreement has not been concluded in the organization or such circumstances are not specified in it.

Employers often have a question: after using how many vacation days an employee can be recalled from vacation. We believe that an employee’s recall from vacation should be carried out taking into account the use of at least 14 calendar days in kind in the current working year. This is due to the fact that in the case of transferring part of the vacation to the next working year (in exceptional cases), the part of the vacation used in the current working year must be at least 14 calendar days <*>. Moreover, monetary compensation in case of recall from vacation can be paid only if the employee uses at least 14 calendar days in the current working year <*>.

Compensation

The unused part of the vacation is compensated in one of the following ways <*>:

- provided during the current working year (by agreement between the employee and the employer). The time for using part of the vacation is determined by agreement of the parties and can be reflected, for example, in an administrative document (hereinafter referred to as the order) on recall from vacation.

Note! A recall from vacation does not mean dividing it into parts <*>; - it is added to the vacation for the next year (at the employee’s request). In this case, the unused part of the vacation will be provided along with the vacation in the next working year;

— compensated in cash (at the request of the employee). In this case, monetary compensation for the part of the vacation not used in connection with the recall is allowed provided that the employee uses at least 14 calendar days of labor leave in the current working year. The procedure for replacing part of the vacation with monetary compensation <*> does not apply in this case.

It is advisable to decide how the unused part of the vacation will be compensated when receiving the employee’s response to the employer’s offer to recall from vacation. The method of compensation can be recorded in the order for recall from vacation.

Documenting

A recall from vacation is usually issued on the day the employee is recalled from vacation. It is possible to issue the order in the near future after the review, in particular the next day. In practice, this happens in cases where recall from vacation is associated, for example, with emergency circumstances.

You can submit an employee's recall from vacation as follows:

1) prepare a memorandum.

As a rule, it is prepared by the employee’s immediate supervisor. It is advisable to indicate in the report:

- circumstances requiring the employee’s presence at work and, accordingly, interruption of his vacation;

— the required date for the employee to return to work.

An example of the wording of a memorandum:

“In connection with the need to represent the interests of our organization in the Supreme Court of the Republic of Belarus on March 12, 2020 in case No. 0000-X/2019, I ask that from March 10, 2020, leading legal adviser Petrova A.N. be recalled from leave, since she previously represented the interests of the organization in this case in the lower courts."

The head of the organization puts on the note a resolution on the procedure for execution <*>. For example, the resolution may state the following: “The head of the human resources department must obtain the employee’s consent to interrupt the vacation and document the employee’s recall from vacation.”

Note: In this case, it is a report, not a memo, that is being drawn up. This is due to the fact that the memo is an information document addressed to a superior manager in the order of direct subordination and containing a detailed presentation of any issue with the conclusions and proposals of the compiler <*>. An internal memorandum, according to a number of experts, is drawn up on informational, organizational issues, issues related to economic support, etc.;

2) send a proposal to recall from vacation to the employee and obtain his consent to this <*>.

You can offer an employee to interrupt his or her leave in a variety of ways that will allow you to obtain his consent in a short time. This can be done in writing (send an offer) or orally (by calling).

Example sentence wording:

“We inform you that the consideration of the cassation appeal in case No. 0000-X/2019 has been scheduled by the Supreme Court of the Republic of Belarus for 03/12/2020.

Due to the fact that in the lower courts you represented the interests of the organization in this case, we invite you to give written consent to recall from vacation from 03/10/2020.

The employee must give his consent to recall from vacation. The form for expressing consent is not established. Therefore, the employee can agree to recall from leave both in writing and orally. A written expression of consent to recall from vacation is preferable. In this case, the employee can make a note on the employer’s proposal if it is made in writing. Or maybe before the day you go back to work in connection with the recall (if possible) or on the day you leave, write a statement of consent to the recall. It is recommended to use the unified form of such an application contained in the USORD.

An example of the wording of an employee statement:

“I agree to recall from vacation from 03/10/2020.”

In the said application, the employee has the right to indicate how the remainder of the vacation will be used.

An example of the wording of an employee statement:

“I agree to the recall from vacation from 03/10/2020.

I ask you to provide the unused part of your leave from 05/04/2020;

3) issue an order to recall from vacation.

After receiving the employee's written consent to recall from vacation, as a rule, by the time he returns to work, an order to recall from vacation must be issued. The order should indicate:

— the reason for recalling the employee from vacation;

— date of return to work;

- the period for providing the unused part of the vacation (current or next working year) or the condition of replacing it with monetary compensation. It is possible to specify a period (month, quarter) or a specific date for providing the remainder of the leave. Then there will be no need to issue a separate order on this issue.

The basis for issuing an order to recall an employee is a memorandum justifying the need for such a recall and the written consent of the employee.

The order must be familiarized to the employee against his signature.

Note that the USORD contains unified forms of orders and instructions for recalling an employee from vacation, recommended for use.

An example of the wording of an order:

“In connection with the need to represent the interests of the organization in the cassation instance (the Supreme Court of the Republic of Belarus) 03/12/2020

I ORDER:

1. Recall Anna Nikolaevna PETROVA, leading legal adviser of the legal department, from vacation from 03/10/2020.

2. Provide the unused part of the labor leave in the amount of three calendar days from 05/04/2020;

4) make changes to the vacation schedule.

Regardless of what form of vacation schedule is used in the organization (recommended by USORD or developed independently by the employer), separate columns can be added to it. It is advisable to include information about the method of compensating for the part of the vacation that the employee did not use in connection with the recall. At the same time, there is a column for entering the basis for changing the vacation schedule in the recommended form;

5) put marks in the work time sheet.

The days on which the employee worked in connection with recall from vacation are counted as days of reporting to work. They are noted on the timesheet by recording the hours worked on those days.

Recalculation of average earnings

As we noted above, the part of the employee’s leave that was not used due to the recall may be provided to him at another time.

The amount of paid average earnings attributable to unused days of labor leave is not withheld from the employee, but is counted against accrued wages for work performed or time worked after recall from leave <*>.

In the case of replacing the unused part of the vacation with monetary compensation, it matters when the employee was recalled from vacation: in the month the vacation began or in the next month.

In the first case, there is no need to recalculate the average daily earnings for compensation (the billing period remains the same). Vacation pay due for days of labor leave not used in connection with the recall will be equal to the amount of compensation for the same days. In the second case, the amount of average daily earnings must be recalculated. This is due to the fact that to calculate average earnings for the payment of monetary compensation, a different period is taken and, accordingly, other payments made in this period. In this case, the amount of compensation for days of labor leave not used in connection with the recall will differ from the amount of vacation pay due for the same days <*>.

Responsibility for violating the procedure for recalling from vacation

The employer does not have the right to recall an employee from vacation without his consent <*>, as well as employees under 18 years of age and employees entitled to additional leave for work with harmful and (or) dangerous working conditions and for the special nature of the work <*>. Otherwise, the employer will violate labor laws.

Also, a violation on the part of the employer will be failure to comply with the agreement reached with the employee and enshrined in the order on the method of compensation for the part of the leave not used in connection with the revocation.

If the employer commits the listed violations, thereby causing harm to the employee, he may be held administratively liable in the form of a fine in the amount of 2 to 20 basic units <*>.

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Recalculation of vacation pay

All payments, starting with earnings, are taxed. In addition, a certain percentage is transferred to various structures and funds. According to Art. 136 of the Labor Code of the Russian Federation, the employee is obliged to receive funds no later than 3 days before the start of the vacation period, and in full. If he enters the enterprise early, it becomes obvious that he will have to pay back funds for unsold days. Therefore, the accountant needs to recalculate and return the excess to the company’s budget.

It should be understood that funds can be deducted not in full, but in equal parts and only from wages that will be accrued for subsequent periods of work. The law prohibits:

• demand the return of funds from the subordinate in another way;
• withhold the debt in full from one month's earnings.

It is not recommended to ignore the recalculation procedure, but to keep the excess funds with the employee to account for the days that he will still have to pay off. This is prohibited, since the period for using the unrealized part of the vacation is not defined. In addition, in connection with each subsequent decision to take the remaining days off, a new order is issued and monetary payments are awarded.

Making a recalculation is quite simple. To determine the amount of debt, it is necessary to multiply the number of unrealized vacation days by the amount of average daily earnings.

Basic Concepts

Every officially employed person has the right to annual rest, regardless of whether he works in a government agency or a private company. To do this, he is given paid leave, the standard period of which is 28 days.

Often, when conducting business, there is a critical need for the presence of a retired specialist at the enterprise. The law provides for the recall of an employee from vacation, and in real life this happens quite often. Current standards make it possible to attract him to work ahead of schedule.

The main document that allows you to correctly recall a vacation is considered to be the Labor Code of the Russian Federation. Article 125 clarifies that, at the initiative of the employer and after agreement with the subordinate, the rest period can be divided into parts. Therefore, if the employee does not object, he can be suspended. The manager will be obliged to provide the unsold days to the employee when the need arises. He has the right to take them off during the current calendar period or add them to the vacation for the next year.

Attention! An unacceptable violation is considered to be a forced demand from management to stop vacationing and return to the company without accepting objections from the employee. Such actions, as well as the imposition of disciplinary sanctions, may become a reason for going to court and entail serious consequences for the director.

Categories of workers who cannot be recalled

Labor legislation categorically prohibits recalling certain employees from vacation, namely:

• pregnant women;
• persons under the age of majority (i.e. 18 years old);
• workers who work in production with harmful or dangerous working conditions.

The legislation guarantees proper rest for these categories of workers, so the manager does not have the right to return them to work ahead of schedule, regardless of the reasons. In this case, the presence or absence of consent on their part does not matter.

Compensation for the rest of the vacation

An agreement on when it is better for an employee to receive days off work will become the basis for actions by the accounting department. How these days are distributed calendar-wise will depend not only on personnel orders, but also on changes in payroll records.

Recalculation of vacation pay

Payroll

In addition to recalculating vacation pay, you must remember to accrue wages for days of work instead of rest. If this period falls on a weekend or holiday, then you need to pay twice (Article 153 of the Labor Code). Essentially, the formula will be as follows: the amount of initial vacation pay – the amount of vacation pay for days not taken off + salary for work instead of vacation + the amount of recalculated vacation pay. It may happen that the recalculated payments will be less than the original ones, then the accounting department will be obliged to inform the employee about this in writing (Article 136 of the Labor Code), and also obtain his consent to such a deduction (Articles 137, 138 of the Labor Code). Moreover, you can withdraw the “extra” money no later than next month. At the same time, the employer can exercise its right not to reduce the amount of vacation pay and not to offend a responsive employee. As incentives or additional motivation for obtaining the consent of employees to help their native company, the collective agreement can provide for a bonus for extraordinary exit during vacation. So that it is not regarded as an attempt at unofficial compensation, it is better to write in the order something like: “a bonus for professional desire and loyalty shown in a crisis situation.” https://www.youtube.com/watch?v=tnpWGIa3vzA

Crediting vacation pay against wages or returning vacation pay to the company's cash desk

If the payment of vacation pay and the employee’s recall from vacation fall within two reporting periods, then in the month the employee is recalled from vacation, as a result of a decrease in expenses recognized in tax accounting by the amount of vacation pay for unused vacation days by the employee and by the amount of the corresponding insurance contributions, it becomes necessary to adjust the values ​​of VVR and SHE is increasing.

Such an adjustment is not a correction of an error for accounting purposes, and the norms of PBU 22/2010 (paragraph 8, clause 2 of PBU 22/2010) do not apply to it.

An increase in the amount of OTA can be reflected by a reversal entry in the debit of account 68 and the credit of account 09 “Deferred tax assets”.

Example

The employee has a five-day, 40-hour work week with two days off on Saturday and Sunday, based on a daily work duration of 8 hours.

His official salary is 30,000 rubles.

Based on the employee’s application, he was granted another paid leave for 14 calendar days (from February 3 to February 16, 2019).

The average daily earnings of an employee, calculated for the purpose of paying him vacation pay, is 1,200 rubles.

Vacation pay is accrued and paid in January.

As a result of recall from vacation, the actual last day of vacation is February 11; the employee began work on February 12.

The organization has the employee’s written consent to offset part of the vacation pay against his salary for February.

The total amount of payments and other remuneration in favor of the employee on an accrual basis since the beginning of the year in February does not exceed the maximum value of the base for calculating insurance premiums.

Any payments to employees are made in non-cash form by transferring funds to their personal card accounts.

In accounting, the amount of accrued vacation pay does not exceed the recognized estimated liability.

Insurance premiums for vacation pay and wages are calculated at the following generally established rates:

• in the Pension Fund of Russia - 22%;
• in the Federal Social Insurance Fund of the Russian Federation (for compulsory social insurance in case of temporary disability and in connection with maternity) - 2.9%;
• to the Federal Compulsory Medical Insurance Fund - 5.1%.

The rate of insurance contributions for compulsory social insurance against accidents at work and occupational diseases is 0.4%.

In tax accounting, a reserve for future expenses for vacations is not created.

Income and expenses are determined using the accrual method,

The reporting periods for income tax are the first quarter, half a year and nine months of the calendar year.