If the employee went on sick leave before vacation in 2022

Sick leave before vacation may prevent an employee from taking advantage of the right to rest, for example, if some work is not completed on time, which may serve as grounds for postponing the start of vacation. And if the illness dragged on and ended only during the period of the vacation that began, then there will be a reason to extend it. You will learn further in our article about the specifics of such a transfer/extension and how this fact should be formalized.

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Postponement or extension of leave due to illness

Presentation of sick leave before vacation is the basis for postponing the start of vacation days in accordance with paragraph. 1 tsp. 1 tbsp. 124 of the Labor Code of the Russian Federation, if the employee recovered by the time it began, but did not have time to receive vacation pay (Part 2 of this norm).

If an illness or injury occurs to an employee while he is on vacation, then he can exercise the right to extend or postpone it. The same scenario is expected if an employee falls ill and does not have time to recover before the start of the vacation.

Note! According to Part 1 of Art. 423 of the Labor Code of the Russian Federation, normative acts adopted back in the days of the USSR and in force on the territory of the modern Russian Federation can still be applied today to the extent that they do not contradict the Labor Code of the Russian Federation.

As stated in Part 1 of Art. 18 Rules on regular and additional leaves (hereinafter referred to as the Rules), approved. People's Commissariat of Labor of the USSR 04/30/1930 No. 169, if before the start of the vacation certain reasons appeared that prevent the employee from going there on time, then by agreement with the employer a new start date can be set. That is, we are talking about postponing a vacation that did not start on time, including due to the employee’s illness.

In the event that the sick leave was closed already during the annual paid leave, which was not transferred because this issue was not agreed upon by the parties, the employee can exercise the right given by Art. 124 of the Labor Code of the Russian Federation, to extend vacation by the number of days of temporary disability that coincided with vacation pay, or to transfer these remaining days to a new period.

Is it possible to take vacation while on sick leave?

Perhaps the employee, after the end of sick leave, will want to stay at home to improve his health, then he needs to write a leave application two weeks in advance. The main thing is that the employer approves the next vacation. However, it is worth considering that a company employee cannot receive 2 payments in one period - either vacation pay or sick leave, because such sick leave simply will not be reimbursed by the Social Insurance Fund. Therefore, going on vacation on days when the employee’s sick leave is open is simply impractical and it’s easier to postpone the vacation date.

So, the employee’s next vacation may coincide with temporary disability. The procedure for leaving and its duration are noted in labor legislation, according to which rest time will not be lost, it will be postponed or extended. The certificate of incapacity for work will be paid in full, even if vacation days were issued with subsequent dismissal.

Sick leave before scheduled vacation

The priority of granting leave is determined according to the schedule, which is mandatory for the employee and the employer (Article 123 of the Labor Code of the Russian Federation). If an employee falls ill and recovers before the start of the vacation, he can go on it according to a previously agreed schedule.

If the employer decides to change the schedule (for example, if the employee was sick and did not complete a certain amount of work), postponing the start date of the vacation to another date, then he must first coordinate this with the employee himself. If the notice is not sent in a timely manner, the employee will have the right, upon his written application, to demand from the employer to determine another date for the start of the vacation (Part 2 of Article 124 of the Labor Code of the Russian Federation).

The vacation schedule is mandatory for the parties to comply with, and therefore if an employee went on sick leave before the vacation and did not recover by the time it began, then:

• the employer can postpone the vacation to a new date, which he will have to agree with the employee;
• an employee can go on vacation after sick leave, notifying the employer immediately after recovery of his decision to extend the vacation, or transfer the days that coincided with the illness to another period.

Setting up a new mechanism

The new mechanism for extending vacations will work if in the payroll settings (Settings - Payroll) the Reverse sick leave when periods intersect

If the Reverse sick leave when crossing periods is checked, the mechanism will work as before.

Let's look at the operation of the mechanism using an example.

The employee was registered on Vacation from 04/29/2020 to 05/28/2020. During the vacation, the employee fell ill from May 12 to May 20, 2020.

Let's consider two cases: when the vacation is not extended and when it is extended.

When using the new mechanism, sick leave during vacation cannot be registered until a vacation correction has been issued, about which a corresponding warning will be issued on the sick leave .

When you click on the link to correct your vacation, you are offered to automatically extend your vacation for the period of illness without changing the amount of vacation pay.

Sick leave due to pregnancy before annual leave

A pregnant employee can take annual leave before or immediately after maternity leave in accordance with Art. 260 Labor Code of the Russian Federation. In addition, the husband of a maternity leave can also submit an application to his employer for annual leave during the period when his pregnant wife takes out maternity leave on the basis of the sick leave provided. And the employer does not have the right to refuse him in accordance with Part 4 of Art. 123 Labor Code of the Russian Federation.

This means that immediately after completing sick leave for pregnancy and childbirth (maternity leave), the employee will be able to freely apply for annual leave, even if she does not have the required length of service to go on it (Article 122 of the Labor Code of the Russian Federation), and regardless of whether how long it was scheduled for. This leave is issued at the request of the employee.

Are other types of leave due to sick leave transferred?

If an employee falls ill before going on other types of leave (study, child care, without pay) and the illness ends only while on vacation, then days of illness cannot serve as a basis for extending vacation days. After all, in Art. 124 of the Labor Code of the Russian Federation refers to the extension/transfer of only annual paid leave due to illness.

At the same time, if an employee planned to go on additional paid leave, then on sick days that coincided with vacation pay, it will be possible to extend it or postpone it to another date. After all, in Art. 124 of the Labor Code of the Russian Federation talks about the possibility of transferring/extending annual paid leave, and it can be basic (Article 115) and additional (Articles 116–119).

In addition, in Art. 17 of the Rules talks about the possibility of transferring/extending both regular and additional leave due to temporary disability.

If before the vacation the employee was on sick leave to care for another family member, then (in this case the overlap of sick days and vacation days) he does not have the right to extend or transfer vacation days. However, according to Art. 18 of the Rules, this circumstance may be recognized as preventing the employee from going on vacation on time, and then the issue of postponing it can be resolved by agreement of the parties.

Is sick leave paid during vacation?

Many workers are interested in whether sick leave is included in vacation pay. Yes, calculations on a temporary disability certificate are equal to working time and are calculated as follows:

• The duration of the insurance period is considered, except for non-insurance periods;
• Average daily earnings are calculated for the previous 2 years and divided into 730 days;
• 10 days are allotted for calculating benefits.

If the sick leave falls on vacation days, then payment for the temporary disability certificate is made according to the general rules, that is, the employee is accrued benefits in full. Even if a forgetful employee did not inform the employer about his illness, according to the law, he is required to pay for sick leave brought after rest and days of illness.

Russian legislation provides for cases when sick leave during vacation is not paid. Legal justification for refusal

happens if:

• sick leave is taken during the employee’s vacation period, without saving wages;
• during study leave;
• the period of maternity leave has begun;
• A certificate of incapacity for work has been issued to care for elderly relatives or minor children.

Sick leave on vacation at your own expense is not paid and is not reflected in the report card. Since it is issued from the day the rest days end, all vacation days are o. Code “B” marks the days of illness on the timesheet when the employee was supposed to return to work.

How to transfer a vacation

The employee must submit a corresponding application to the employer if he decides:

• reschedule the start date of vacation;
• transfer to another date vacation days that coincided with being on sick leave;
• extend annual leave for sick days.

This application is drawn up in any form and is submitted either in person or by mail. The application must indicate:

• subject of the request (transfer/extension);
• the basis for submitting the petition (illness, injury, other reasons);
• desired transfer/extension dates.

So, for example, an application to postpone the start of vacation due to sick leave taken before vacation may look like this:

After receiving a written application to postpone/extend leave, the employer has the right to decide to accept the offer, if there are legal grounds for doing so. After which a corresponding order is issued, which indicates the decision:

• making changes to the vacation schedule with approval from the trade union committee;
• transferring vacation days.

If an employee went on sick leave right before the start of the vacation, the corresponding order came into force and an entry was made in the personal card, then appropriate changes should be made. Thus, the previous order can be canceled due to a change in the start date of the vacation, and the entry in the personal card can be corrected.

There are no grounds for making such corrections at the legislative level, so changes are made as is customary in the rules of personnel records management. Corrections are made as follows: the previous text is crossed out and the corrected text is written in the free space. Next to the correction, you must put the date and signature of the person responsible for filling out the document being corrected with a transcript of your full name and position.

An order to reschedule a vacation may look like this:

How to apply for sick leave during vacation followed by dismissal?

Upon dismissal, an employee must formalize:

1. Document in connection with vacation.
2. Document due to dismissal.

This will give the HR department the right to draw up two orders that allow the employee to go on vacation and resign. If the dismissal order has already been approved, and the citizen fell ill while on vacation, then no changes to the dates are allowed. If the employment contract is terminated after the start of the vacation, then the work book and pay slips must be issued to him immediately.

Personnel documents must be drawn up in accordance with current legislation on the basis of an application written by a person in free form. The HR specialist must create a document based on Art. 84. 1 Labor Code of the Russian Federation

. When the documents are ready, management forms calculations regarding dismissal and vacation.

How sick leave and vacation pay are paid when vacation is postponed

Payment of disability benefits is made if recovery occurred before the start of the vacation or if the sick leave was closed while the employee was on paid annual leave (including additional). But if an employee fell ill while on other types of leave (in particular, on leave at his own expense), then he would not have the right not only to payment, but even to the issuance of sick leave.

As for the payment of vacation pay, there are nuances. Let's take a closer look at them.

Sick leave

A certificate of incapacity for work closed before going on vacation is paid in full upon its presentation. The basis for receiving temporary disability benefits is sick leave - the benefit is paid in full for all days of illness/injury in accordance with Part 1 of Art. 6 of the Law “On Compulsory Social Insurance...” dated December 29, 2006 No. 255-FZ (hereinafter referred to as Law No. 255-FZ).

The same applies to payment of sick leave to care for a sick relative, if it was closed before the start of the vacation, the benefit is paid in accordance with Part 5 of the above article.

If the certificate of incapacity for work was opened before the vacation, and closed after it began, the temporary disability benefit is paid in full for all days of illness, if we are talking about annual paid leave (Clause 1, Part 1, Article 9 of Law No. 255-FZ).

If the sick leave was closed while on study leave, maternity leave, leave without pay, etc., then no benefits are paid for this period of overlap between sick days and vacation pay.

When calculating the amount of temporary disability benefits, the length of service of the insured person, that is, the employee, matters. According to Part 1 of Art. 7 of Law No. 255-FZ, depending on the number of years of work for the policyholder, benefits are paid in the amount of 60% to 100% of average earnings. Moreover, if sick leave was issued to care for a child who was being treated at home, then starting from the 11th day, the benefit is paid in the amount of half the average earnings (clause 1, part 3 of the above article).

According to Part 1 of Art. 14 of Law No. 255-FZ, the average earnings for calculating sick leave are calculated for 2 calendar years that preceded the onset of illness/injury. In other words, in 2021 the income base is taken from 2022 and 2022.

In 2022, the procedure for calculating and paying sick leave has changed. According to the new rules, the benefit cannot be less than the minimum wage, based on a full calendar month of illness. In addition to the minimum wage, when calculating sick leave pay, increasing regional wage coefficients established in the region of residence are taken into account. The condition applies to all types of diseases: quarantine, injury, flu and others. Comparing the average earnings taking into account length of service and the minimum wage, we pay the benefit at the higher value.

The transition to direct payments from the Social Insurance Fund raises the most questions. Until recently, the FSS worked with policyholders on an offset principle: the employer paid benefits, and transferred the difference between the amounts of accrued contributions and paid benefits to the Fund. The situation began to change in 2011, when the “Direct Payments” project was launched in a number of pilot regions; in 2022, this project will spread throughout the country. The essence of the project is that the employer transfers contributions to the Social Insurance Fund in full, and the Fund directly pays benefits to the employee.

When the employee brings documents confirming his right to receive benefits, and the employer checks them for compliance, then an application is drawn up to the Social Insurance Fund in the form established by Social Insurance Fund Order No. 578 dated November 24, 2017. It is required for all insurance cases, including for the period of temporary disability.

The employer calculates the benefit and pays the amount for the first 3 days, withholding personal income tax (clause 1, clause 2, article 3 of the Federal Law of December 29, 2006 No. 255-FZ; Decree of the Government of the Russian Federation of April 21, 2011 No. 294; clause 1 of Article 217 Tax Code of the Russian Federation).

The employee will receive the rest of the benefit from the Social Insurance Fund, so the Fund withholds personal income tax from it.

An employee can choose a convenient way to receive benefits: to a bank account, by postal transfer or to a Mir payment card. Benefits can be transferred to the employee, either to a salary account or to any other account.

You can fill out and submit to the FSS the electronic register for the “Direct Payments” project in accounting software modified to meet the requirements of the project, in the information systems of specialized telecom operators, as well as in the free automated workplace “Preparation of calculations for the FSS”, which is available for download on the official website of the FSS.

Within 10 calendar days from the date of receipt of the full set of documents, the regional branch of the Social Insurance Fund makes a decision on the assignment and payment of benefits. If an error is identified during the processing of documents, the documents will be returned to the employer for correction.

You can find out about the benefit paid in the personal account of the recipient of services. You can log in with your login and password from the government services portal.

How to recalculate vacation pay?

The amount of vacation pay must be recalculated depending on the period to which the employee’s vacation is postponed. If the date of the first day of vacation and the date after its transfer fall within the same calendar month, then there is no need to recalculate vacation pay.

If the rest days are moved to another month or year, then the billing period also changes, and therefore, possibly, the average earnings. In such a situation, the amount of vacation pay is recalculated. Payment of sick leave during vacation is calculated according to general rules .

What will happen and what to do if the funds have already been paid?

In accordance with Art. 137 of the Labor Code of the Russian Federation, the employer has the right to withhold, without the employee’s consent, part of the funds that were paid to him as vacation pay from his salary only in the event of his dismissal.

If funds for legal vacation have already been paid, then there is no need to return them - the law does not say this anywhere.

If, after recalculating the amount of vacation pay, it turns out that the money paid is more than the required amount, then the employer has the right to withhold the overpaid part from the next payment of money to the employee. In such a situation, the employee's written consent is required. There is also the option to count the difference in money already paid as an advance on future wages.

Read about whether sick leave is included in the calculation of vacation pay, and how rest days affect accrual according to the ballot.

An employee who falls ill during his legal vacation should take care to notify his superiors about his desire to reschedule his vacation. It is important to agree on this point in advance to avoid unpleasant situations. After returning from vacation and sick leave, you will need to write an application and provide a sick leave certificate , on the basis of which the employer will be able to issue an order to postpone the employee’s legal rest.