Annual paid rest is the right of every employee. But if necessary, the employer may decide to interrupt it and call an employee to perform certain work. The list of situations in which a person may be asked to go to work has not been approved at the legal level, so companies independently decide when they need an employee so much that their legal vacation can be interrupted. Most often this is an unforeseen or emergency situation, an accident, an urgent business trip or an unexpected inspection. Whatever the reason, the employer must obtain the employee’s consent to recall from leave (a sample with the necessary explanations is presented below).
Order to recall an employee from vacation
The order for recall from vacation is drawn up in any form.
There is no special form for this document established by law. Each company determines its content independently based on the requirements of labor legislation for the procedure for interrupting an employee’s rest, taking into account the company’s internal labor regulations. Read about unified forms of “vacation” orders and forms of other “vacation” documents in the articles posted on our website. See, for example, articles:
- “Unified form No. T-60 - form and sample”;
- “Order for annual paid leave - sample and form”;
- “Application for another vacation - sample and form (2021).”
Who cannot be recalled from vacation?
Article 25 of the Labor Code limits the circle of persons who can be called back from regular vacation. The following categories cannot have their vacation interrupted:
- citizens under 18 years of age;
- women registered for pregnancy;
- employees working in places whose conditions, as a result of a special assessment, are recognized as harmful and (or) dangerous.
By the way, persons combining work and study cannot be called back from additional study leave.
Recall from vacation: how to take into account the requirements of labor legislation
The requirements for filing a vacation review are set out in Art. 125 Labor Code of the Russian Federation.
Important to consider! Recommendation from ConsultantPlus: Not all employees can be recalled from vacation. Part 3 Art. 125 of the Labor Code of the Russian Federation establishes a ban on recalling employees from vacation... (see if the employee is included in this list, in K+). Trial online access to the system is free.
If the called vacationer is not included in the specified list, only the desire of the employer to interrupt his vacation is not enough. A vacationer has the right to refuse to interrupt his vacation and not fear punishment for this (clause 37 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2).
In addition, recalling an employee from vacation results in the following additional responsibilities for the employer:
- take into account the employee’s desire to take off vacation days at any time convenient for him;
- at the employee's option, add the unused part of the vacation to his annual leave for the next working year.
Learn more about the nuances of providing annual paid leave from this publication.
Do I need to recalculate?
The legislation does not define the procedure for recalculating the paid vacation pay in a situation with a forced interruption of vacation. In practice, the following points are taken into account:
- recalculation is made taking into account the reduced number of vacation days;
- When an employee is recalled, the timesheet from the first day of work will include hours of work, which are paid in the usual manner. Payments received for days of unused vacation can be offset against wages;
- recalculation is necessary for the subsequent calculation of average earnings taken into account for calculating vacation pay in the new period (Article 139 of the Labor Code).
Compliance with internal corporate rules
The procedure for recalling from vacation may be prescribed in the company’s local standards - in this case, it is necessary to adhere to the established procedure. For example, the regulations on vacations or internal labor regulations indicate that in order to issue a recall from vacation, the following is required:
- an official note from the head of the department whose employee is subject to recall (an official note signed by the director of the company serves as the basis for issuing a written notice of recall from leave sent to the employee);
- the employee’s own consent to interrupt the vacation;
- entering information about the remaining days of rest into the vacation schedule and the employee’s personal card.
In this case, the recall from vacation will have to be completed using all the specified papers in full.
Find out the procedure for drawing up a vacation schedule (form T-7) and an employee’s personal card (form T-2) from the articles on our website:
- “Unified form No. T-7 - vacation schedule”;
- “Unified form No. T-2 - form and sample filling”.
If no nuances are provided for by internal company standards, you can inform an employee about a sudden interruption of his vacation in any possible way: by phone, email, etc. But you still can’t do without a written order. How to arrange it, see below.
Procedure for submitting a review
It is recommended to document the call of a subordinate from vacation, following the established procedure. Management must record all actions in writing in order to subsequently protect themselves from claims. They usually start preparing papers on the day he shows up for work, or at least in the near future. In practice, this rarely happens, and only if an emergency situation arises at the enterprise.
Employee notification and consent
The procedure begins with the head of the department where the specialist works preparing a memo addressed to the director. In it, he describes the situation that has arisen, thereby motivating the need for the return of the subordinate and his presence in the company. The document is drawn up in any form, but it should clearly indicate the basis for such an action.
It is important to know! Agreeing with the boss, the manager endorses the document. If there is no urgent need for a specialist to stay in the company, he simply writes “Refuse”.
In accordance with the provisions of the Labor Code of the Russian Federation, a manager has the right to interrupt the rest of his subordinate due to emerging circumstances. But in reality, it is advisable to first obtain his consent, since there is a possibility of receiving a refusal on his part. Therefore, the employee is first informed about the difficulties that have arisen and is asked to interrupt his rest and begin his duties. If there are no objections, a written notice is drawn up, on which he puts his signature or writes a statement of consent.
Order
After the employee has agreed to interrupt his vacation and return to the company, and has confirmed this in writing, the director instructs to prepare and issue an appropriate order. Its form can also be arbitrary, but must contain information about the reasons for such a decision and the date when the vacationer plans to resume his duties.
It is advisable to decide on the choice of compensation option for the unrealized rest period at the moment when the employee agrees to interrupt the vacation. This information must also be specified in the administrative document.
Registration in timesheets, changes in other personnel documents
From the moment the order acquires legal force, an accountant or HR department employee is obliged to make adjustments to the vacation schedule.
- The “Note” column records that the remaining days will be used in another period.
- In the “Grounds” column, enter the order number and the day it was issued.
- If the vacationer has decided on a different time for vacation, this must be recorded in the “Date of proposed vacation” section.
Changes are also made to the time sheet. Labor days from the date of going to work are marked with the code “01” or “I”. The period when the employee was on vacation is marked with the coding “09” or “OT”.
It is important to know! The information in the employee’s personal card is also subject to correction. You can learn about the fact of a premature call to work from column 4 of section VIII of the form, which records the number of vacation days used, as well as from column. 7 of the “Grounds” containing the details of the order.
How to file a recall from leave due to production needs (sample)?
The list of circumstances under which recall from vacation is permitted is not established by law, so the employer has the right to determine them independently.
For example, recall from leave due to production needs is possible in the following cases:
- carrying out an inventory, the presence of a financially responsible person is mandatory;
- conducting an on-site tax audit, during which the chief accountant will have to be at the workplace;
- problems in computer networks that can only be resolved by a system administrator.
Leave from vacation due to business needs can also be issued for other employees of the company.
How to submit a vacation review? Revocation from vacation is formalized by an order, the content of which must provide for the following:
- the reason why the employee will have to take time off from rest;
- information about the date of interruption of vacation and the full name of the called vacationer;
- the number of days of unused vacation and the date when the employee is ready to take it off;
- an order to the accounting department to recalculate the vacation amount and to HR officers to enter information about vacation days to be used in the future in the vacation schedule and the employee’s personal card.
In the order for recall from vacation, the details of the employee’s written statement of consent to interrupt his vacation are indicated as the basis.
A sample order for recall from vacation can be found on our website.
How to write an order correctly?
If the employee’s consent is obtained, then the employer needs to prepare an order on the basis of which changes will be made to personnel documents.
- standard details - date, place of preparation, title of the document, title, details of the organization (the organization’s letterhead can be used);
- the reason for drawing up the order - for example, due to production needs;
- ordering the HR specialist to interrupt the employee’s vacation and formalize his return to work;
- an order to provide unused days at a time convenient for the employee;
- order to recalculate vacation pay;
- an order to accrue wages from the moment the employee starts work, according to the wages established for him;
- document basis - an employee’s statement of consent;
- manager's signature.
The reason for the recall is usually production necessity, sick leave for a partner, a large influx of clients, or expansion of production.
Samples due to production needs for 2019
The concept of production necessity can mean a wide category of reasons when the organization present cannot cope with work tasks with its own resources, for which a vacationer is called to work ahead of schedule.
Below are examples of how you can issue an order.
employee from leave to work early if there is a production need (2019).
Another example of an order to call for production needs.
An example of drawing up an order to call another employee on sick leave.
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Is it possible to recall from vacation without recalculating vacation pay?
Accountants often ask the question: is it possible to recall from vacation without recalculating vacation pay? Unfortunately no. The fact is that when transferring vacation, the average earnings for calculating vacation pay will need to be calculated based on the new billing period (Article 139 of the Labor Code of the Russian Federation), therefore the employee must return part of the vacation pay for unused vacation days.
The organization cannot retain them without the employee’s consent, since Art. 137 of the Labor Code of the Russian Federation establishes restrictions on deductions from an employee’s salary. To withhold overpaid vacation pay when recalled from vacation, the organization must either agree with the employee that he will return the money to the cashier, or receive an application for withholding from the employee, or register the overpaid vacation pay as an advance against future salary. In any case, in order not to violate the Labor Code of the Russian Federation, it is necessary to formalize the employee’s consent to withhold vacation pay for the number of days for which the employee was recalled from vacation.
In what other cases is the employee’s written consent required, see the articles:
- “Consent to the processing of personal data - form 2020 - 2021”;
- "St. 137 Labor Code of the Russian Federation: questions and answers" .
Who can be recalled from vacation?
The employer has the right to recall almost every full-time employee from the next vacation (with the exception of categories that we will consider below). But Article 125 of the Labor Code allows this to be done only with the consent of the employee, stated in writing.
At the same time, the latter retains the right to refuse to interrupt the vacation period even in the event of an urgent production need. In this case, the employer is prohibited from applying disciplinary or other sanctions.
An employee’s refusal to start work during the next vacation cannot be considered as a case of violation of labor discipline. Therefore, if any measures are taken by the employer, they can be protested in court.
If the employee does not object and is ready to interrupt the rest, the days remaining from it must be provided to him in the current calendar year or transferred to the next year. The dates for using rest days are determined by the employee at his own discretion.
Results
Various circumstances force an employee to be recalled from an employer’s vacation: a sudden tax audit, a broken computer network, etc. In order for the procedure for recall from vacation to be official and legal, it is necessary to issue a separate order, the employee’s consent to be recalled from vacation, as well as consent to withholding vacation pay for days of recall from vacation.
An employee’s refusal to interrupt his or her vacation early will not be considered a violation of labor discipline.
In this case, there is no need to issue an order. You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.
Legal norms Art. 125 Labor Code of the Russian Federation
In fact, Part 1 of the said article establishes the rule that it is permissible to divide vacation into parts, but this can only happen by agreement with the employee. There can be as many parts as you like, but the duration of at least one of them must be at least 14 calendar days.
The second part of the article under consideration contains the rule that the employer can recall the employee from vacation. The legislator did not provide for any specific circumstances for this, but this is also permitted by current legislation only with the consent of the employee. Although there are excesses here too.
They are expressed in the fact that some employers are trying to impose disciplinary sanctions on employees for the fact that they:
- refused to interrupt their vacation;
- during the holiday they turned out to be unavailable when the employer tried to contact them.
All the time since the advent of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2, paragraph 37 of which does not allow an employee’s refusal to take leave to be considered a disciplinary offense, this requirement has been violated everywhere.
If the employee agreed to interrupt the vacation and began to perform his duties, then the remaining part of the vacation should be provided to him at any convenient time of his choice during the current year or added to the vacation for the next working year.
Recall from vacation is a way of dividing vacation into parts, which occurs at the initiative of the employer. When recalled, wages must be recalculated, and in the future, when using the remaining part of the vacation, the average salary for the vacation is paid on a general basis.
Certain categories of employees are not subject to recall from vacation. These include pregnant women, persons under 18 years of age, and workers employed in hazardous production areas.
The law establishes the rule that in the event of an employee’s illness, his leave must be extended. This creates another area of increased risk.
For example, an employee fell ill during vacation, informed the employer about this by telephone, and the latter promised him that after recovery the employee could safely continue to walk. And when he returns, he finds out that he has already been fired for absenteeism. In this case, it is very difficult to be reinstated through legal proceedings, and not everyone can do so.
Other reasons for extending leave are the employee’s performance of government duties and all those provided for by law, for example, arrest by court decision.
The employee and the employer may agree that the vacation will be postponed to another date if the employee was not paid on time or the employer informed him of the start time of the vacation less than two weeks in advance. Transfer to the next working year is allowed only in exceptional cases and only with the consent of the employee.
Vacation must be used no later than 12 months after the end of the working year for which it is granted.
Can an employee refuse to take leave?
Despite the fact that the employer has the right to recall a subordinate from vacation, circumstances arise in life when he does not agree to return to the company before the due date. Many people are wondering how legal his actions are? For clarity, it is worth considering this example.
Attention! The employee went on vacation in accordance with the approved schedule and managed to receive cash payments. After some time, force majeure circumstances arose in the company, requiring his presence. The manager issues an order for early recall and sends a notice to the subordinate. He ignored the requirement and showed up at work on the scheduled day after rest.
According to the Labor Code of the Russian Federation, his actions are considered lawful, since the law does not oblige him to interrupt his planned vacation, and even gives him the right to use it in parts. In this regard, such a decision does not qualify as truancy and, therefore, he cannot be punished for this. On the contrary, fines and disciplinary actions will be regarded as a violation. When attempting to quit, a subordinate has the right to contact the labor inspectorate. And since the law will take his side, he will be able to receive compensation for moral damage caused.
