Having considered the issue, we came to the following conclusion:
The employer has the right, at the request of the employee, to provide him with any duration. The employee's application must indicate valid reasons for granting such leave.
Rationale for the conclusion:
Providing employees with leave without pay wages regulated by art. 128 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation). Part two of this article establishes the obligation of the employer, on the basis of a written application from the employee, to provide such leave to certain categories of employees or any other employees upon the occurrence of the life circumstances specified in the article. The annual duration of unpaid leave in these cases is limited.
In addition, in accordance with part one of Art. 128 of the Labor Code of the Russian Federation, based on a written application from an employee, the employer has the right (but is not obliged) to grant any employee leave without pay for family reasons and other valid reasons. The duration of such leave is determined by agreement between the employee and the employer and is not limited by law.
Please note that the provision of leave without pay is regulated not only by the Labor Code of the Russian Federation - special laws may establish additional restrictions in this area. So, for example, leave without pay for a civil servant cannot exceed one year (Part 15, Article 46 of the Federal Law of July 27, 2004 N 79-FZ “On State civil service Russian Federation"). For employees who are not government employees, the maximum duration of unpaid leave is not limited.
Thus, if there is a request from an employee to provide him with leave without pay for a period of more than one year, the employer has the right to grant him such leave. This does not entail any sanctions for the employer. The employee's application must indicate valid reasons for granting such leave.
It should be noted that in accordance with part one of Art. 121 of the Labor Code of the Russian Federation, the length of service that gives the right to annual basic paid leave includes a period of unpaid leave of no more than 14 calendar days during the working year.
Prepared answer:
Expert of the Legal Consulting Service GARANT
Erin Pavel
Response quality control:
Reviewer of the Legal Consulting Service GARANT
Zolotykh Maxim
The material was prepared on the basis of individual written consultation provided as part of the Legal Consulting service.
Any person has circumstances when he is in work time should be in a different place.
If you just don’t go to work, it will be absenteeism, and its consequences can be very sad.
A solution may be to take time off at your own expense.
What does the law say?
The first thing the employee should do in this case is to contact legislative acts, where all his rights and obligations are stated.
To avoid having to turn over stacks of documents or spend hours on the Internet searching for information, in our article we will consider this issue in detail.
Normative base
All relations between employee and employer in Russia are regulated by Labor legislation. It also regulates the employee’s rest.
So, according to the Labor Code, you can take time off in several ways.
The first option is due to the additional rest time provided:
- for overtime (Article 152 of the Labor Code provides for the provision of rest time no less than the time worked overtime);
- for working on weekends and holidays (Article 153 of the Labor Code of Russia);
- working on a rotational basis - overtime hours during the year can be summed up and provided to the employee in the form of an additional day of inter-shift rest (Article 301 of the Labor Code of the Russian Federation);
- for donating blood or its components - not only the day of donation is a day off, but also the next day, which, in turn, can be transferred to any other (Article 186 of the Labor Code of the Russian Federation).
Holidays are not provided in advance for these reasons. In addition, such absenteeism is not shown on the timesheet.
The second option is on vacation.
Article 125 of the Labor Code states that annual leave, which is paid by the organization, can be divided into parts.
Thus, an employee, in agreement with the employer, can take one or more days from it according to a previously written application.
Option 3 - time off at your own expense. This will be discussed in the following chapters of our article.
Vacation or time off at your own expense?
The concept of "time off" does not exist now in Russian legislation. But it did not go out of use.
In practice, administrative time off is equivalent to leave without pay and is regulated by Article 128 of the Labor Code of the Russian Federation.
To whom and in what situations is it entitled?
This leave can be taken for family reasons, as well as for other valid reasons.
Here the employer independently decides whether to give you an additional day off or not. That is, he may consider the reason disrespectful and not provide time off.
But there are several cases in which the authorities do not have the right to refuse, as well as certain categories of citizens.
These situations and persons who must be granted leave without pay are included in the table, along with the deadline for its provision.
You can view the documents listed in the table here:
How is compensatory time off paid upon dismissal? Read here.
How to take it?
You can’t just decide not to go to work, arguing that this is how you took time off.
This is already truancy. Everything must be documented.
Let's look at the whole process.
How to apply for time off at your own expense?
There is no standardized template for such a statement.
If the company has not developed it independently, then it should be written in free form - the document is handwritten or printed on a printer, it does not matter, the main thing is to put your signature.
The application must indicate the reason for the leave; you can also attach copies of supporting documents or write that they will be provided later.
The signature of the employee himself is not enough.
To ensure that a day off is not considered a day off, the document must contain the manager’s resolution. Therefore, you should take care of its registration in advance.
Do you need an order from the employer?
After the application is signed by the director (general director), the organization issues an order to grant the employee leave without pay.
This process occurs in several stages:
- First, the order must be drawn up and printed.
- It is signed first by the head of the organization or a person authorized by him. Thus, the shift supervisor’s signature on this document does not carry any meaning.
- Be sure to familiarize yourself with the text of the order against signature by the applicant himself. If he goes on vacation before the order is issued, this will violate labor laws.
Otherwise, the employer simply will not be able to correctly calculate the length of service that gives the right to annual paid leave (Article 121 of the Labor Code of the Russian Federation).
Is time off allowed for a business trip? Find out here.
How to put paid time off on your timesheet? See here.
Number of days and terms of provision
The duration of this rest period is agreed upon individually by the employee and the employer.
Legislation in commercial organizations There is no limit on the number of days, so you can take time off for one day or for a longer time. But for state civil and municipal employees, vacation at their own expense cannot exceed one year.
But here the question arises: how many days of unpaid leave can you take per year without affecting your length of service, which affects your annual paid leave?
The limit is set at 14 days.
But that doesn't mean you can't take it more days time off. The employee will simply go on paid leave later.
Let's look at this with a simple example.
Employee of OJSC "Filin" Kurochkin F.V. has been working in the organization since December 1, 2014. In 2017, he went on leave without pay several times for valid reasons:
Let us determine when Kurochkin is entitled to annual leave that must be paid.
First, let's calculate the number of days that were provided as leave without pay to an employee during the year: 6+13+4=23 days.
Thus, the excess is 23–14=9 days.
Is it possible to apply retroactively?
Orders cannot be drawn up “retrospectively”.
According to the law, an employee does not have the right to go on vacation without the permission of the manager. The latter endorses the application, after which an order is issued based on it. Otherwise, the day off will be considered absenteeism.
And for absenteeism, an employee can not only be fined, but also fired.
What to do if time off is not given?
And he can legally refuse if the reason seems disrespectful to him.
To increase your likelihood of approval, you can use the following tips:
- In practice, time off is often denied due to the fact that there is no one to replace the absent employee. In such cases, you can agree in advance with one of your colleagues that he will replace you during this time.
- You can also do most or all of your work in advance (if possible).
- You can agree with your boss that the work for the days you are absent will be completed later.
- If you are asking for time off to go to the doctor or to look after a sick child, then you don’t have to take time off, but simply bring a doctor’s certificate (for example, from a dentist) or a sick leave certificate. But management still needs to be warned about the current circumstances.
Thus, time off at your own expense can only be granted with the permission of the employer.
The exception is a few situations and categories of citizens. But in any case, documentation before leaving for this day off is mandatory.
Time off at your own expense
The concept of “time off” in the law governing labor Relations not provided for in an enterprise or organization. The law allows citizens to take vacation at their own expense, in accordance with Article 128 of the Labor Code of the Russian Federation. The number of days taken as part of unpaid leave (at your own expense) within 12 months is also regulated.
How to take time off at your own expense
An employee of the organization writes a statement, and his boss issues an order for time off at his own expense. Days are provided for reasons that are recognized as valid. Norm 128 of the Labor Code of the Russian Federation does not provide an exhaustive list of life circumstances in which time off is granted to an employee of an enterprise or company.
Reasons for taking time off
Typically, the reason why a citizen requests time off is considered by the employer. The following are accepted as valid reasons:
- death of relatives;
- wedding;
- illness of relatives, etc.
Only for these reasons a citizen has the right to take time off. This leave can be granted to a citizen for no more than 14 days in 12 months. Exceptions from general rules constitute certain categories of persons, for example, persons with disabilities. They have the right to demand 60 days off from their employer for a valid reason. In addition, the employer does not have the right to refuse to provide leave at his own expense in the following cases:
- In the event of the birth of a child;
- In the event of the death of a relative;
- In case of registration of marriage relations.
In other cases, even if the reasons stated by the employee in the application seem valid, the employer may refuse. The employer's decision to refuse is influenced by various factors:
- indispensability of the employee;
- vacation period;
- short work experience;
- probation;
- repeated registration of an additional type of leave;
- violations of discipline;
- production necessity;
- attitude towards the employee: the employee’s reputation, his qualifications, etc.
Other situations for providing leave at your own expense
The law guarantees the provision of leave without pay during entrance examinations to educational institutions for up to 15 days. This is stated in Article 173 of the Labor Code of the Russian Federation. Students of courses in educational institutions, employees who study at universities, and other persons are granted leave of up to 15 days to defend their thesis. In addition, members of the election commission or authorized persons have the right to count on the provision of this type of leave - from the day the elections begin until the end of the elections, as well as the wives of military personnel during the second half's leave.
Application for leave is addressed to to CEO company (organization) two weeks before the date of receipt of the required time off. If a vacation is taken out hastily, it was not planned earlier, then due to valid reasons for its appearance and the need for it, the employer can be notified 24 hours in advance. The application submitted by the employee must contain the consent of the employer. Based on the application, the employer issues a decree. His form is T-2. It is strictly unified.
Leave without pay, the duration of which exceeds 14 days, is not included in the employee’s total length of service for registration of the next type of leave, as well as for the purpose of applying for early retirement.
Application for time off at your own expense
How to write an application for time off at your own expense for one day on account of vacation according to the Labor Code of the Russian Federation. Time off for family reasons, for funerals, for time previously worked
From time to time there is an urgent need to take an extraordinary day off or take time off from work for a while. At the same time, absence from work that is not documented is considered absenteeism. This article discusses in detail actual problems and controversial issues relating to such a concept as “time off”. After reading the contents of this article, you will be well aware of your rights and will be able to apply them in practice.
Time off according to the Labor Code of the Russian Federation
The legislation of the Russian Federation, in particular the Labor Code (LC RF), does not contain the concept of “time off”. This term can rather be attributed to colloquial, which in in a broad sense means the absence of an employee from the workplace, which is subject to work or has already been worked. Despite the fact that the term “time off” is not found in legislative and regulatory acts, the Labor Code of the Russian Federation discloses a similar concept in Art. 153, which implies that, at the employee’s will, he may be given time to rest on another working day, instead of an already worked day off.
The concept of “time off” also means a day of rest “on account” of the annual leave, or leave without pay for 1 day.
Art. 106-107 of the Labor Code of the Russian Federation contain information that vacation is one of the types of rest time, expressed in days or hours, when the employee is completely relieved of his work duties.
According to Art. 128 of the Labor Code of the Russian Federation for family circumstances and others good reasons an employee, by his personal written expression of will, may be granted leave without pay for a period of time determined by mutual agreement between the boss and the employee.
How to write a leave application
It is not difficult to draw up an application document for time off. It does not provide special forms, but has a standard form, regardless of the grounds and reasons for its writing. When drawing up an application, you should adhere to the following rules:
- You should start writing the application from the “header”, located in the upper right corner of the sheet. It contains information about the addressee (position and full name, in the dative case) and about the applicant (position and full name, in the genitive case).
- Next, the word “statement” is written in the center.
- This is followed by the text of the application, indicating the date (time) and reason for the leave.
- The application ends with the date of drawing up the document, a personal signature with its transcript.
1. In your appeal, you must indicate compelling, valid reasons that prompted you to take a vacation at your own expense. It would be useful to attach photocopies of available documents to the application as confirmation of the authenticity of the reason (marriage certificate, birth certificate of a child, death of a relative, etc.).
2. Time off is considered legal only after written approval from management. Otherwise, failure to show up for work will be considered absenteeism, and may be a reason for dismissal.
3. The conditions for granting time off are usually contained in the employment contract. If there are no such clauses in the contract, the employer has the right to make a decision at his own discretion, including refusing to grant the employee time off for reasons of urgency of work, lack of replacement, as well as for other subjective reasons. The exception is certain legally provided cases when the employer does not have the right to refuse an employee an extraordinary day of vacation. You will learn about such cases later in this article.
4. A logical conclusion from the previous paragraph: an application for time off must be written in advance (3-5 days in advance), and never retroactively.
Examples of applications for time off for various reasons
The basic form of a sample leave application is as follows.
General Director of Pulse-MS LLC
from the machine operator of the convector workshop
Application for time off
I ask you to grant me leave without pay on 05/05/2017 due to the urgent need to visit a veterinarian.
Sample application for leave at your own expense for one day
“I ask you to grant me leave without pay for 1 working day - 05/15/2016 - due to the urgent need to be present in the apartment at my place of residence during urgent repairs of the heating system.”
An application for time off without saving earnings can be written at any time (3-5 days before the required date). It is impossible to predict whether the employer will sign the application or refuse to grant time off. The granting or refusal of leave without pay is influenced by many factors: from the weight and respectability of the reason for the time off, to the personal attitude of the boss towards a particular employee, his replaceability/irreplaceability, etc.
At the same time, you need to know your rights well, defend your interests and demand time off in situations that guarantee time off by law.
Application for time off on account of vacation for 1 day
“I ask you to amend the established vacation schedule and provide me with annual paid leave from August 15 to August 16, 2016 for 2 calendar days.”
When there is a need to take a day off, but you don’t want to take time off at your own expense and don’t want to lose money, the most preferable is time off at the expense of a vacation. The number of days off can be any, with one limitation: the main part of the annual leave should not be less than 14 days.
Important: annual paid leave is paid at least 3 days before it starts, so you should write the application at least 3-4 days before the planned time off so that the accounting department can accrue vacation pay in a timely manner.
Time off for work on a day off
“I ask you to give me a day of rest on June 23, 2017 for working on the day off on June 12, 2017.”
According to Part 1 of Article 113 of the Labor Code of the Russian Federation, work on holidays and weekends is prohibited. However, an employer can involve a citizen (with his consent) to work on a day off, if necessary, to perform important, urgent work on which the full functioning of the company depends.
Art. 153 of the Labor Code of the Russian Federation provides for double pay for work on weekends. In addition, at the will of an employee who worked on a day off, he may be given a day of rest. An employee can use this day of rest, specified in the law, as a day off by writing a corresponding application, and the work performed on the day off will be paid in the standard - single - amount.
Important: regardless of the number of hours worked on a day off, the employee has the right to a full day of rest.
Application for leave for family reasons
“I ask you to grant me leave without pay from 06/14/2016 to 06/15/2016 for family reasons (due to the urgent need to accompany a minor child on a trip to a hospital in Moscow)”
Leave for family reasons for up to 5 days can be taken out:
- at the birth of a child;
- in case of marriage;
- in the event of the death of a close relative.
Some workers believe that these days are paid. It's a delusion. However, the collective agreement may provide for the payment of a lump sum benefit in the above circumstances or material aid(at the discretion of management).
In addition, employees who have continuous work experience exceeding 6 months can take a few days or hours off for other reasons that can be classified as “for family reasons.” Workers who have not worked for 6 months do not have the right to this (at the discretion of management), except for 3 categories of persons:
- pregnant women;
- parents of children under 3 months;
- minors.
Time off for previously worked time
“I ask you to give me a day off - 07/05/2017, for previously worked time - 01/01/2017.”
Time off for previously worked hours may be provided to an employee at his request, as an alternative to monetary compensation for hours already worked.
Time off for overtime
“I ask you to grant me leave on 09/13/2017 for the time worked above the norm on 07/08/2017.”
Overtime work (overtime) has the same legal nature as work on holidays and weekends. By virtue of Art. 152 of the Labor Code of the Russian Federation, at the written request of the employee, instead of double pay, it can be compensated by providing time off for a time no less than the overtime worked, and overtime hours are paid at a single rate.
Application for leave for a few hours
“I ask you to grant me leave without pay on July 14, 2017 from 15:00 to 17:00, for family reasons.”
The Labor Code of the Russian Federation does not establish a minimum threshold for the duration of time off, which means that by mutual agreement between the employer and the employee, the latter can be granted time off even for several hours.
Time off for a funeral according to the Labor Code of the Russian Federation
“I ask you to grant me leave without pay from 02/01/2017 to 02/05/2017 due to the death of my sister”
In accordance with Art. 128 of the Labor Code of the Russian Federation, in the event of the death of a close relative (children, brothers, parents, sisters, grandparents, grandchildren), the employee can count on leave without pay for a period not exceeding 5 calendar days. If this time is not enough, it can be extended to 14 days.
Can they refuse time off at their own expense?
The Labor Code of the Russian Federation provides guarantees of the right to leave without pay for up to 5 days in a row to citizens belonging to certain categories, and also determines the total number of days off provided per year. For example:
- For WWII participants – up to 35 days.
- For working pensioners - up to 14 days
- For working disabled people – up to 60 days.
- For parents and spouses of deceased or injured military personnel – up to 14 days.
- For employees who take entrance exams to a university – 15 days.
The Labor Code of the Russian Federation provides guarantees of the right to time off when an employee encounters certain life situations, such as:
- marriage;
- birth of a child;
- death of relatives;
- donation of donor blood (1 day off – on the same day).
Other “legitimate reasons” to take time off
Every officially working citizen is given the legal right to rest for time worked, overtime, on account of annual leave, and so on; it is enough to correctly draw up (submit) an application for time off and, if necessary, agree with management on specific dates for rest days.
The material was prepared by order of the law firm "Dominium"
Time off at your own expense. Cases of mandatory submission of time off
Time off at your own expense is provided to the employee only after agreement this issue with the leader. In cases provided for by law, a superior cannot refuse such a request to a subordinate. This norm is fixed in the labor code. In addition, a citizen has the right to ask the manager for time off at his own expense if he carried out official activities during non-working hours.
Coordination with the manager
In order to get an unscheduled day off, you need to address this issue to your boss. If a subordinate has a relationship with a manager a good relationship, and he does not fail him in the performance of his official duties, then the employer will always meet such an employee halfway. In this case, you must draw up an application for time off at your own expense and submit it to your boss. Then wait for the latter's decision.
In some cases provided for by law, the boss must grant the employee an unscheduled day off, for example, for carrying out official activities outside of working hours. In addition, some subordinates are entitled to additional unpaid leave. These include:
- working pensioners;
- war veterans;
- wives and parents of fallen military personnel, law enforcement officers, and fire service personnel;
- disabled people.
You can also take time off at your own expense if you are officially registered. family relations, the birth of a baby, the death of loved ones. In all other cases, this issue is resolved directly with the manager. In this case, you need to draw up an application and indicate in it a valid reason why the person wants to take time off at his own expense.
Decor
In order to receive an unscheduled day off without saving income, you need to prepare an application and submit it to your boss. You can draw up this document yourself or take a ready-made form from the organization’s human resources department. The application for time off at your own expense is completed as follows:
To the director of __________ (name of institution)
___________________ (surname and initials)
from a subordinate _________________________________
I ask you to provide a day of additional rest (indicate the number) without maintaining the average income, in connection with the formalization of marital relations.
Citizen’s signature ____________ (transcript)
Also, an application for time off at your own expense can be written without indicating a legal basis. In this case, you will need to obtain the consent of your boss.
To the head of the department _______________________
______________________(surname and initials)
from employee ______________________________
Please allow me a day without saving income due to family circumstances (it is best to write about them in full).
Subordinate's signature _________
In this case, time off is granted by the decision of the manager.
For time worked
Situations very often occur at enterprises when a citizen is called upon to perform official duties during non-working hours, which must be supported by an order. Based on this document, the employee will be able to demand from the manager another day off in the future. If the boss refuses this request to a subordinate, this will be a serious violation of labor laws.
Time off towards vacation
Sometimes situations occur in life when an employee simply needs to take an extra day of rest to solve his personal problems and at the same time keep his earnings for the missed time. In this case, you need to submit an application for time off on account of your vacation. There is no sample of it in the legislation, so a citizen can prepare it independently or take a form from the personnel department. Here it is necessary to note the fact that persons who have been working in the organization for at least six months have this right. Such a statement is drawn up as follows:
To the director ____________________ (company name)
_______________________________ (surname and initials)
from employee ___________________ ( surname and initials)
I ask you to provide me with one day as my main vacation.
Signature of the subordinate ____________ (transcript)
After writing the application, you need to submit it to the manager for signature and wait for his decision. If it is positive, then you will need to go to the HR department with this document, where a specialist will draw up an appropriate order. And only after this can you count on an additional day of rest.
Extenuating circumstances
Days without pay are provided to employees only upon agreement of this issue with the head of the enterprise. But what should you do if there is a good reason, but your boss won’t let you leave work? In this case, TC comes to the rescue. It states that the boss must provide leave without pay in the following cases:
In this case, its duration is up to five days. Therefore, in such situations it is necessary to prepare a statement. It should contain Article 128 of the Labor Code as a basis. This is necessary in order to receive time off at your own expense. A sample application is presented below:
To the head of the department __________________
_________________ (surname and initials)
from an employee _________________________________
Please give me a day off with income withholding due to the birth of the baby on ________ (specify date).
I will provide a copy of the child’s birth certificate after receiving it.
How to fill it out correctly
Even if a citizen only needs a couple of hours to visit a doctor at a clinic, he still needs to formalize the time off in writing at his own expense. A sample application is as follows:
To the head of the department _______________________________
____________________________ (surname and initials)
from subordinate ______________ (last name and initials)
I ask you to give me a day off with withholding of my earnings due to the fact that I need to go to see a doctor at the clinic.
We have reviewed samples of applications for time off. We hope the information was useful to you.
Time off at your own expense
Time off at one's own expense in the generally accepted sense means the employer's permission for an employee to miss a working day without pay. But does such a concept exist in law?
The word “time off” does not exist in the Russian Labor Code. There is a concept additional leave, which can be provided for a number of reasons without pay (unpaid leave). These could be the employee’s valid reasons, family circumstances, or the employer’s obligation to compensate, for example, for overtime worked.
Need rest
Additional rest may be provided to an employee:
- for previously worked overtime instead of payment;
- according to personal desire, requirement.
The latter formulation may be satisfied by the employer, but may be refused. A day off on account of future or partially used vacation cannot be considered time off at one’s own expense.
Word of the law
If workers are delayed at the workplace due to at will the employer has the right not to provide time off at the time specified by the employee. Therefore, any order overtime work or on weekends and holidays management must do so in writing with advance notice and an order signed. This provision is regulated by Letter of Rostrud 10.03.08 No. 658.6.0.
In the case of officially registered overtime, on holidays or on weekends, the employee can choose independently whether he wants to receive the payment required by law at least 1.5-2 times the regular rate or replace it with a day of additional rest. This is regulated by Art. 152 TKRF.
Additional rest can be provided based on the number of hours worked overtime, that is, for a day, several days or part-time. And when working on weekends and holidays, the employee has the right to an unpaid day of rest during working hours and to single payment for the time actually worked under Art. 153.
Labor Code
In this option, the time off will appear in the time sheet as a simple day.
Moreover, the same article stipulates that the day is provided to the employee regardless of whether he worked a full day on a day off or just a few hours. Mandatory rest is also required for donors, which is regulated by Article 186 of the Labor Code. The remaining options for obtaining time off are optional for the employer, except for reasons recognized by law as valid and specified in the collective agreement. By employee's decision donor days
can be added to vacation, that is, he has the right to increase vacation, and it is absolutely legal.
Good reasons
- According to the law, there are only three valid reasons for taking time off at your own expense.
- death of a close relative (parents, children, spouses);
- own wedding;
birth of a child (for father).
In other cases, if the union has not taken care of satisfying other reasons, the employer may refuse. Usually on large enterprises
- The collective agreement includes the following valid reasons for time off:
- children's wedding,
- death of any relative,
September 1st for parents of first-graders, etc.
- The manager’s decision to refuse additional time off may be influenced by:
- the indispensability of the employee at his workplace,,
- reporting period short period of work, being on,
- probationary period
- frequent registration of additional rest,
- disciplinary violations,
- by necessity,
Dismissal of an employee due to staff reduction is a lengthy procedure. Read more in the article.
Time off and length of service
By law, an employee can only take 14 days off per year at your own request. The employer, for a valid legitimate reason, is required to provide up to 5 time off at the request of the employee. All time off in excess of the two-week limit will be deducted from the total length of service when calculating the pension.
From this point of view, it is more profitable to take time off for the extra time worked, the main thing is to formalize it.
You can foresee such a situation in advance and leave your vacation a couple of days earlier by agreement with your superiors in order to have them in reserve. In these cases, additional days of rest will not be noticeable on the report card, and therefore will not reduce the legal limit.
We arrange time off at our own expense
Time off or additional rest according to the Labor Code is issued with the prior consent of the parties and upon the personal application of the employee. But there are some nuances here. The application can be submitted in several ways. Moreover, according to the law, in some situations the employer has complete carte blanche, and in some his actions are strictly limited by the law.
Time off that is not arranged in advance, even if it is taken for legitimate reasons, is considered absenteeism.
And therefore, it qualifies as a reason for dismissal.
Duration for different categories of workers
Time off at your own expense also includes vacation at your own expense. For some categories of employees it is required to be provided upon application. This is stipulated in the Labor Code.
There are certain standards that cannot be exceeded:
- age pensioners (women over 55, men over 60) have the right to 14 days unpaid additional rest per year;
- participants of the Great Patriotic War for a period of no more 35 days;
- Disability pensioners have the right to a maximum of 60 days of rest without pay;
- full-time students during the session, practice, writing a diploma for a period of 15 days to 4 months;
- entering universities, technical schools, vocational schools for the period of completion preparatory courses, change entrance exams no more 15 days;
- spouses or parents of military personnel killed in the line of duty before 14 days a year;
- employees working in difficult conditions, in the far north or in conditions equivalent to them;
- part-time workers are required to provide leave at their own expense for a period that does not overlap with part-time leave in relation to leave at the main place of work.
Statement
For small companies, where there is no a certain shape forms, an application for time off at one’s own expense is written to the immediate supervisor in free form. For large companies Both enterprises have a certain form, and the HR department should have a sample application.
Sample application for time off at your own expense: Sample-application-at-your-own-expense
On each application, the reasons for granting time off must be indicated when endorsed (for future leave, according to Labor Code, due to own wedding, on account of previously worked time, etc., if the reason for granting time off is regulated by law, then it is necessary to indicate the article of the Labor Code - the basis).
Based on the application completed and signed by the manager, an order is issued indicating the reasons for the leave of absence and the basis for consent.
The employee gets acquainted with it against his signature, the order is sent to the employee’s personal file.
Decrease in earnings
The procedure for payment and registration of time off may be additionally specified in the collective agreement. Time off at your own expense is not paid. If it is provided on account of days of vacation registered but not taken, the employer has paid for it in advance.
In the situation of working on weekends, as mentioned earlier, time off can be chosen in exchange for part of the double pay for the day off worked. Moreover, if the day off is not fully worked, then payment is made at the standard rate for the hours actually worked, and the additional day of rest is provided in full (Letter of Rostrud dated 07/03/09 No. 1936.6.1). It should be borne in mind that the number of days off without pay affects the calculation of the amounts of sick leave, maternity leave, and vacation pay, since these days reduce
average earnings
. There is no payment for days off. The most common example (Figure 1): The employee worked full day on Sunday during a five-day week. He agreed with the employer on a single payment and a day off compensation on the Tuesday following the working day off. No payment is made for the sixth day, since this day is considered a day off, and it is
this method
Leave without pay can only be taken with the consent of the employee. If such additional rest is initiated by the employer, then it is called idle time and must be paid in the amount of 2/3 of the salary.
If an employee needs a day of additional rest for family or other reasons that are not described in the Labor Code as mandatory for the employer, and the boss does not want to objectively or not provide it, then there is practically no way out.
The situation can be saved by making a request to higher authorities, but in practice, the manager always supports the manager. So, if the boss is biased towards the employee for personal reasons or is simply an unfriendly person, then you will not be able to do your personal business during working hours - you will have to wait for a legal vacation. In Russian legislation in labor relations
, of course, there is no concept of time off, but in reality everyone understands what we are talking about even without legal implications. Usually, the interpretation of this concept does not cause controversy. But it is worth remembering that unauthorized time off, without confirmation of the consent of management, is defined as absenteeism, and therefore, the employee has the right to be fired under the article.
How is Cyprus used in offshore schemes? See here.
The card details for salary transfer can be provided personally by the employee. Read more in the article. 14 days In the event of a controversial situation and legal proceedings, only a violation by the employer in the form of a refusal to sign a statement will be relevant in cases where the law stipulates the mandatory provision of time off, even if the total amount per year exceeds the permissible
. The remaining cases are entirely under the control of the employer, since the Labor Code of the Russian Federation does not regulate the procedure for spending accumulated additional days within certain periods.
It should also be understood that time off cannot be a bargaining chip in the relationship between the employee and the employer, and you cannot, having taken time off, work it off later (first work off, and only then compensation with additional rest). There are no restrictions on the total number of days and on a one-time application for granted time off.
In this way, employers try to reduce the costs associated with remuneration for labor activities. And employees, in turn, perceive this quite calmly, considering this state of affairs preferable than, for example, using such a procedure as terminating an employment contract.
Is unpaid leave the norm?
As provided for in Art. 128 of the Labor Code of the Russian Federation standards, leave without payment of earnings can be granted to an employee on the basis of a written request due to the presence of certain family circumstances or other reasons that may be considered valid.
The duration of such leave is established by an agreement concluded directly between the employer and the employee.
In addition, the provisions of this article impose an obligation on the employer to provide, on the basis of an appropriate application, leave without pay to such categories of employees as:
- Persons who participated in the Second World War - up to 35 days (in calendar terms) per year;
- Implementing labor activity age pensioners - up to 14 days (in calendar terms) per year;
- Spouses, as well as parents of persons who are military personnel who died or died in the performance of military duties - up to 14 days (in calendar terms) per year;
- Disabled people working - up to 16 days (in calendar terms) per year;
- Usual in the presence of such reasons as the birth of children, marriage, death of one of the closest relatives - up to 5 days (in calendar terms).
Also, the employer is obliged to provide the above-mentioned leave in other cases that are provided directly by labor legislation, other legislative acts, as well as collective agreements.
Enshrined in Art. 72.2 of the Labor Code of the Russian Federation, the provisions define simple, as a temporary suspension of labor activity, arising due to the presence of factors of an economic-technological, organizational, and also technical nature.
The downtime period is not included in the stipulated in Art. 107. Labor Code of the Russian Federation and an exhaustive list of types of rest time, therefore, in the event of downtime, all employees must be at their work places. Accordingly, in the time sheets maintained by the organization, everything personnel working days must be recorded.
According to those enshrined in Art. 157 of the Labor Code of the Russian Federation, payment for the entire period of downtime must be made as follows:
- If there are circumstances resulting from the employer’s fault, the amount of payment is 2/3 of the employee’s average earnings.
- If there are factors that do not directly depend on the employer or employee, the amount of payment is 2/3 of the salary or tariff rate, calculated in proportion to the downtime.
- If there are circumstances resulting from the employee’s fault, payment for the entire period of downtime is not made.
Leave without pay
Based on modern judicial practice, all circumstances related to the employer’s absence financial resources(even due to reasons such as failure to fulfill obligations by counterparties, market fluctuations, falling prices, etc.) should be attributed to the employer’s fault.
This is due to the fact that such circumstances fall under the concept of business risk, which is an integral part of the work carried out by the employer. The latter is defined by the provisions of Article 2 of the Civil Code of the Russian Federation as an activity carried out by the subject independently and at its own risk and with the goal of systematically obtaining economic profit.
In addition, fixed in paragraph 3 of Art. 401 of the Civil Code of the Russian Federation stipulates that an entity that fails to fulfill certain obligations when conducting business activities is liable unless it provides evidence that the failure was caused by the presence of force majeure circumstances; however, the above-mentioned cases cannot be classified as such.
Thus, downtime resulting from the occurrence of the circumstances under consideration is subject to payment in the amount of 2/3 from the employee.
Responsibility
Actions of the employer, initiated by him independently and related to sending employees on leave without preserving their earnings, are qualified as labor legislation standards. For committing this offense, the employer is subject to liability established by the provisions of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, which provides for the application of an administrative fine of the following amount to the guilty subject:
- in the range from 1000 rubles to 5000 rubles - for officials;
- in the range from 30,000 rubles to 50,000 rubles – for;
- in the range from 1000 rubles to 5000 rubles – for entities conducting entrepreneurial activities without forming a legal entity.
According to those recorded in paragraph 3 of Art. 2.1 of the Code of Administrative Offenses of the Russian Federation provisions, the application of administrative sanctions to a legal entity does not entail automatic release from liability for the said offense of the guilty individual and vice versa.
Due to the fact that the provisions contained in the Code of Administrative Offenses of the Russian Federation in the mentioned cases do not establish any restrictions when determining punishment, the judge is vested with the right to use any of the prescribed penalties (including the maximum) against guilty subjects within the framework of the sanction established by the relevant article , taking into account circumstances that have both a mitigating and aggravating effect on guilt.
Detection of offenses
Proof of offenses is possible if there is documentary evidence
It is possible to hold an employer accountable for granting, on his own initiative, leave to employees without paying them the salary due to them only if there is documentary evidence of this violation of labor legislation. This type of confirmation can be:
- Written orders or proposals from the employer for employees to submit applications for leave at their own expense.
- Applications from employees for the provision of the said leave, containing reasons such as the inability to pay wages, a decrease in the overall productivity and profitability of the company, etc.
There are a huge number of cases of providing days off without pay. It is simply impossible to list them due to their diversity.
This is explained by the fact that the reasons for the need for such rest, as a rule, are family circumstances, be it the illness of a relative, the urgent departure of the employee himself, the need to visit one or another organization whose opening hours coincide with the working hours of the worker, etc. In any case, the validity of such reasons is assessed by the employer in each specific case.
Who has the right to “forced rest”? Everyone, without exception, has the right to leave without pay at the initiative of the employee.. However, it should be borne in mind that it can be divided into two types:
- Leave that is granted at the discretion of the employer.
- Leave that the employer is obliged to provide.
The latter is clearly regulated by Article 128 of the Labor Code of the Russian Federation. The categories of persons, according to this article, and the duration of such leave can be presented in table form:
| Categories of persons | Duration of vacation |
| WWII participants | up to 35 calendar days a year |
| Working pensioners (retired by age) | |
|
up to 14 calendar days a year |
| Working disabled people | up to 60 calendar days per year |
Workers in the following cases:
|
up to 5 calendar days a year |
The above list is not exhaustive. indicates the presence of other cases established by law or collective agreement in which the provision of days off without pay is mandatory.
For clarity, we provide an additional list of categories of citizens to whom the employer is obliged to provide leave at his own expense, indicating its duration and basis:
Reference! Federal laws and collective agreements may establish additional grounds for mandatory unpaid leave.
How many days can I take?
The period for which the employee wishes to leave at his own expense is determined in each specific case by agreement with the employer. However, one should not forget that the law may establish a maximum period of stay on such vacation.
How many times a year is this opportunity offered?
Employees, as a rule, are interested in the question of how many days a year can they take? Since this kind of vacation is a necessity caused by personal or family circumstances, then it is impossible to plan their occurrence. Therefore, it is assumed that such vacations can be taken countless times, because it is simply impossible to schedule them.
However, do not forget that a certain limit must be observed (if it is established by law). That is, the allotted leave can be used either once or divided into parts - but within the limit established by law (for example, within a year) and period (for example, up to 14 calendar days).
What is included in this period?
Do public holidays count as vacation? As a general rule, unpaid leave is calculated in calendar days, which means that it includes both weekends and holidays. Its extension without pay, as well as its provision, is the prerogative of the employer, with the exception of cases where the employee took fewer days than he is allowed by law or a collective agreement.
In the latter case, the employee certainly has the right to extend his vacation up to the limit established by law.
Attention! If the employee went on vacation at his own expense solely by agreement with the employer, then an extension of such vacation will have to be negotiated.
The upper and lower limits of vacation at your own expense can be established by law or local legal act. In Russian legislation, it varies from five days to a year, depending on the categories of citizens and the circumstances that necessitated the provision of such leave.
In other cases setting rest limits is left to the employer. In this case, everything depends on the production capabilities of the enterprise and agreements with management.
Can an employer call an employee?
The production process is often unpredictable and the possibility of letting an employee go today does not mean that such an opportunity will be available tomorrow.
That's why, the presence of employees at their workplaces does not always depend on the wishes of the employer, sometimes it can be caused by production needs.
Important! Recall from administrative leave without pay is not regulated by the labor legislation of the Russian Federation.
There is no special article about this in the Labor Code of the Russian Federation. It seems that it is not permissible if its provision is required by law.
But giving an analogy with annual paid leave, revocation still takes place if there is the consent of the employee, since in this case the agreement of the parties has been observed, which makes it possible to judge that there is no violation of the employee’s rights, and There is no direct prohibition on recall from this type of leave in the legislation of the Russian Federation.
As for vacation at your own expense only by agreement with the employer, then there will not be a recall, but an early termination of such vacation. In this case, the employee’s consent is not required, since the initial granting of leave was the employer’s permission, which means he has the right, at his own discretion, to change his decision and end such leave ahead of schedule.
Useful video
Next is an informational video on the topic “Who is given leave without pay and for how long?”:
Conclusion
Our life is unpredictable. No one is immune from the need to temporarily interrupt their work activity. In some cases, the law comes to help the employee by establishing the employer’s obligation to provide leave at his own expense. In other cases, employees have to rely only on the leniency of the employer.
In any case, every employee has the right to leave without pay, the main thing is not to forget about the need to reach an agreement with the employer, otherwise, the exercise of such a right without the knowledge of management may be regarded as absenteeism, which will entail extreme Negative consequences for the employee.
Also, you should not abuse this right, but exercise it only when necessary - this will allow you to establish yourself as a hardworking employee who wants to grow and develop.
Even the most inveterate workaholics sometimes find themselves in a situation where work fades into the background. But whatever the circumstances, it is unlikely that anyone will dare to risk losing workplace, taking care of personal problems during work time. A way out of this situation is provided for by the Labor Code of the Russian Federation - this is the possibility of obtaining leave at your own expense.
Grounds for granting leave without pay
Leave without pay, or, as it is commonly called, without pay, is granted only if the employee has a good reason. Therefore, the corresponding application must necessarily contain a reference to specific circumstances that do not allow the employee to be at the workplace for a certain time.
At the same time, deciding whether the reason indicated by the employee is valid enough to grant him leave is entirely the prerogative of the employer, assigned to him by Article 128 of the Labor Code of the Russian Federation.
According to established practice, in addition to registering a marriage, the birth of a child or the death of a close relative, the need to see off a son for military service in the armed forces or send a child to a place of summer vacation may be recognized as circumstances requiring leave.
Vacation at one's own expense is formalized by an order or instruction issued on the basis of a handwritten application by the employee. Despite this, the employee can return to perform his official duties at any time by notifying his supervisor in writing.
The employer's obligation to provide leave without pay
Part two does not allow refusal to grant leave without pay in cases where it is required by parents of minor children or employees holding the title of Hero Soviet Union or Russia, as well as full holders of the Orders of Glory or Labor Glory, veterans of combat and labor.
Higher education students also have a legal right to such leave. educational institutions who are undergoing full-time training and combining it with work. Few people know, but in case of illness, any employee can receive leave at his own expense for a period of three days without providing a certificate of incapacity for work or other medical documents.
Duration of vacation
Unlike the Labor Code previously in force in Russia, the modern Labor Code of the Russian Federation does not know the concept of “short-term leave without pay.” Therefore, today its duration is determined by agreement with the employer. The lower and upper limits of the period are not regulated by law, but they may be reflected in the local regulations of the enterprise.
The exception is the cases prescribed in part two of Article 128 of the Labor Code of the Russian Federation, which provides for the right of WWII participants to receive leave at their own expense for up to 35 days in each calendar year of working pensioners, as well as spouses and parents of military personnel and persons equivalent to them who died in the line of duty. official duty - up to 14 days.
Disabled people, according to the same norm, can count on leave without pay for 60 days a year, and new parents, newlyweds or employees who have lost a close relative - up to 5 days.
Protects the rights of parents of minor children. Thus, up to 14 days of leave without pay at any time during the year are legally granted to employees who have more than one child under the age of 14 or a disabled minor. Single fathers and mothers have the right to such leave even if they have only one child under 14 years of age.
Heroes of Russia or the Soviet Union, as well as full holders of the Order of Glory, enjoy the right to annual leave without pay for a period of up to three weeks, granted to them by part three of Article 8 of Law No. 4301-1 of January 15, 1993. A similar duration of leave is established for Heroes of Socialist Labor and full holders of the Order of Labor Glory in accordance with the provisions of part two of Article 6 of Law No. 5 of January 9, 1997.
In what cases can you take vacation at your own expense?
Vacation at your own expense is an employee’s initiative to take several unpaid days in order to resolve some of his issues or problems. During such rest, wages are not accrued, but the job is retained. In addition, if an employee takes less than 14 calendar days a year, then this break does not in any way affect the calculation of his working year for annual leave.
Whether or not to release an employee on unpaid leave is the employer’s right, not his responsibility. You can take a few days at your own expense after an agreement has been reached with your superiors. But there are cases when management does not have the right to refuse to issue its employee several unpaid days.
For example, the Labor Code of the Russian Federation specifies circumstances in which management is obliged to give up to 5 calendar unpaid days. These are cases such as:
- registration of the employee’s marriage;
- the birth of his child;
- death of a close relative.
To apply for a vacation at your own expense, if such circumstances exist, you must write an application addressed to the management and attach supporting documents to it. But since all certificates of changes in civil status are issued somewhat later after the event, a copy of the supporting document can be brought later. The employer does not have the right to refuse to issue such leave on such grounds, but it is better to approach in advance and discuss the dates of “time off” so that there are no discrepancies later.
In addition, there are also categories of employees to whom the employer is obliged to provide several days of rest “at his own expense” during each working year. The Labor Code of the Russian Federation states that these days can be taken at any time convenient for the employee, having previously agreed on his vacation with management. The duration of rest for certain categories of citizens is regulated not only by the Labor Code of the Russian Federation, but also by other laws, including federal ones. For example, in Federal Law dated January 21, 1995 No. 5-FZ “On Veterans” stipulates the duration of unpaid leave for working veterans of all wars.
The categories of employees to whom the employer is obliged to provide leave without pay at a time convenient for them after agreement with management are presented in the table below:
|
Duration of vacation |
|
|
WWII participants |
Up to 35 calendar days per year |
|
Working pensioners (old age) |
Up to 14 calendar days per year |
|
Parents and spouses of military personnel who died in the line of duty |
Up to 14 calendar days a year |
|
Working disabled people |
Up to 60 calendar days per year |
|
Employees who are allowed to take entrance exams to educational institutions higher education |
15 calendar days |
|
Employees who are students of preparatory departments of universities to take final exams |
15 calendar days |
|
To pass the intermediate certification |
15 calendar days a year |
|
For writing a thesis and preparing for final exams |
4 months |
|
To pass final exams at universities |
1 month |
|
Up to 35 calendar days per year |
To receive unpaid leave, you must write an application and attach a document confirming this right. For example, a working pensioner, in order to receive leave of up to 14 calendar days per year, must attach a copy of his pension certificate.
Registration of leave without pay
If an employee needs to take a few days off at his own expense, he must notify his management about this. Notification is given in writing in the form of a statement addressed to the boss structural unit or addressed to the head of the enterprise. The document can be drawn up by hand or filled out a template available in the HR department. There is nothing complicated! It is necessary to indicate the period during which the applicant plans to be absent from the workplace and the reason.
The latter does not always need to be specified. If you reach an agreement with your superiors, you can state the reason orally, and in your application simply ask for a few unpaid days. If the employee is a “beneficiary”, and the employer’s responsibilities include providing him with such leave, then the reason must be indicated in the application. In addition, documents confirming the benefit must be attached to it.
It is necessary to ensure that the application has been accepted for consideration. It is recommended to fill out 2 identical applications, submit one to the HR department, and keep the other. Your copy must have a mark that will be put by a HR employee. The mark must include the registration date, the number of the incoming document, as well as the signature of the employee who accepted it.
After this, if there are no objections from the employer, it is necessary to issue an appropriate order. This is done by the HR department employee, and the boss signs it. Only after the employee has read the order against signature, he can safely be absent from the workplace, without fear that these days will be counted as absenteeism.
A corresponding entry must also be made in the personal card of the absent employee. This is necessary in order to monitor whether unpaid leave will affect the length of the working year. This is important to consider when providing annual paid leave.
These days must also be reflected in the timesheet. This is done like this:
The period of such leave includes both holidays and weekends. This is its main difference from basic paid leave.
Guarantees for an employee on leave at his own expense
When an employee is not actually at work, the employer does not have the right to fire him. The only exception is complete liquidation legal entity. Therefore, terminate employment contract the employer cannot do so at his own discretion while his employee is on unpaid leave. If an employee falls ill during such leave, sick leave will not be paid. The exception is going to work the day before the onset of illness. Then the benefit will be paid in accordance with current legislation, based on the employee’s length of service and his average earnings.
But if during a vacation at her own expense a woman goes on maternity leave, it will be paid in the amount of 100% of her average earnings. In this case, unpaid leave must be interrupted the day before the start of maternity leave.
A woman can spend many months on unpaid leave, and the employer will not have a basis for calculating maternity benefits for her. Then payments should be calculated in the amount of 100% of average earnings, the tariff rate or other material value in which labor is paid at a given enterprise.
That is, management has no right to fire a person who is absent from work at his own expense. Therefore, his job is retained. But someone has to do it job responsibilities for an absent employee. As a rule, management arranges a job match for another person and pays him extra for it. As soon as the “vacation worker” returns to work, the additional payment will be withdrawn. If an employee is absent from work for several months, then it will be more difficult for management to get out of the situation. Therefore, the issue can be resolved in a different way!
You can take as many unpaid days as you like, but by prior agreement with management. If such leave lasts more than 14 calendar days, this will affect correct calculation working year for the provision of annual leave.
Can an employer send people on vacation at their own expense?
No, vacation at your own expense is solely the good will of the employee himself. An employer does not have the right to send a person on vacation and not pay him for a day.
If the employer cannot provide its workforce with a working process, then it will be downtime due to the fault of the employer. Management may send employees home, but these days will be paid. Downtime is paid in the amount of 2/3 of the average earnings of each employee.
If management sends employees on unpaid leave, this is a violation of rights. Therefore, employees can complain to the labor inspectorate. An audit of the employer's activities will be initiated for violations of labor laws. If violations are detected, the employer will be held accountable in accordance with Art. 5. 27 Code of Administrative Offenses of the Russian Federation. The sanction under this article is a fine:
- for officials of the organization (manager) - a warning or a fine from 1000 to 5000 rubles. If the employer commits such an offense again, this will entail a fine of 10,000 to 20,000 rubles. or disqualification for a period of one to three years;
- for entrepreneurs - a fine from 1000 to 5000 rubles. If the employer commits such an offense again, this will entail a fine in the amount of 10,000 to 20,000 rubles;
- for an organization - a fine of 30,000 to 50,000 rubles. Repeated violation entails a fine of 50,000 to 70,000 rubles.
You can write a complaint to the labor inspectorate or the prosecutor's office.
Dismissal while on vacation at your own expense
The person himself may express a desire to resign at any time, including on vacation, which he took at his own expense. And the employer has no right to fire him. The exception is the complete liquidation of the enterprise. In this case, even pregnant women are subject to dismissal. If an employee decides to quit during unpaid leave, he needs to write a statement and submit it to the human resources department. This can be done by visiting the employer in person or by sending an application by mail. Vacation at your own expense will not be interrupted.
The time that the employee will be on unpaid leave will be counted as work, provided that he will be on vacation for all 2 weeks. If the employee wishes, he can interrupt his rest and go to work for these 2 weeks. Then the employer, when will he do full payment, these 2 weeks will have to be paid.
The procedure for dismissing an employee on unpaid leave is no different from the procedure for dismissing an employee who is actually at the workplace:
- the employee writes a statement and submits it to the human resources department in an accessible way. It is necessary to ensure that it is properly registered;
- Based on the application, a dismissal order is issued. This happens closer to the end of the working period. The employee must be familiarized with the order against signature;
- on the last working day, the resigning employee must be fully paid, given a work book with a record and other “labor” documents.
Difficulties arise in determining the last working day, since the employee does not actually work. When will it be right to hand over all the money and documents?
This must be done on the last day of work. That is, on the actual day of dismissal.
How to arrange a vacation at your own expense
It should be reflected in personnel documents. All entries are made on the basis of an order to provide a specific employee with several days of rest without pay. But the entry in the report card will depend on the basis on which this leave is granted:
- if leave was granted in agreement with management, then you should mark “BEFORE” or indicate digital code 16;
- if leave is granted in accordance with the law, then the mark must be “OZ” or digital code 17.
When writing an application for unpaid leave on legal grounds, documents must be attached to the application.