The legislative framework
Payments for unused vacation are discussed in Articles 126 and 127 of the Labor Code. Moreover, the second concerns cash payments upon dismissal. Such situations happen more often. And the order for this compensation is usually not issued separately. The order is simply one of the points of the dismissal order, and the reason for the dismissal itself is not important; it cannot serve as a pretext for denying the right to receive a monetary payment.
In general, according to existing standards, compensation is due only in the case when last year the employee “didn’t take enough time” or did not take vacation at all and the balance (or all the required 28 days) were transferred to the next year and “attached” to the vacation days of the next period.
Exceptions to the rules
If the company has a minor employee, then he cannot be compensated for vacation days. It is also strictly prohibited to issue such compensation to pregnant women.
Previously, this standard also applied to employees who perform their duties in harmful (class 3) and dangerous (hazard class 4 working conditions) conditions. For some categories, by the way, vacation should be increased.
So, if an employee who works in hazardous working conditions wants to receive compensation for unused vacation, then his application can be fulfilled only if there are 28 vacation days, plus an additional week. That is, for everything that exceeds 35 days.
Replacing annual paid leave with cash compensation
Replacing vacation with monetary compensation is not a simple procedure, and in many cases it is not allowed. Only the employee has the right to initiate this operation, and an order is required to issue a replacement.
When is it not allowed to replace vacation with monetary compensation?
The law specifies a number of cases when exchanges are not allowed. It will not be possible to arrange a replacement vacation for money from:
- pregnant women. Moreover, any pregnant woman must know that this procedure is prohibited for any type of recreation;
- minor employees - that is, their age does not allow them to independently resolve this issue; such a right appears at eighteen.
Also, according to Article 126 of the Labor Code of the Russian Federation, it is not allowed to replace vacations with payments for people working in dangerous, harmful production. The law makes an exception only in case of dismissal of a citizen.
As mentioned above, in such a situation you should not look for a sample application and fill out the form, since money is required to be paid and any other situation cannot be allowed.
If the payment was not made on time, the employee has the right to file a complaint against the manager with the labor inspectorate. Details here...
Article 126 of the Labor Code of the Russian Federation
Why may unused vacation occur?
In practice, vacation may not be used in full for several reasons:
- Employee illness while on vacation. At the same time, the employee will have to confirm his condition at this time by having a sick leave certificate.
- If during vacation the employee took a course in absentia. According to the law, the employer is obliged to release the employee from service for this purpose. And since the person is on vacation and does not actually use the days, he has the right to extend the vacation for this period or receive compensation. This also applies to other cases when an employee performs government duties (for example, gives testimony, etc.).
- Other reasons provided for by existing legislation.
In any case, when revising the term or compensation, one must be guided by the interests of both the employee and the employer. In most cases, adequate people come to a compromise on this issue quite quickly. If this does not happen, then you should refer to the Labor Code.
Replacement of vacation with monetary compensation - sample order
Often, an employee is more interested in receiving money than paid leave.
In case of production necessity, launch of new equipment, and so on, the employer may offer to receive monetary compensation along with the rest period (although if the employee wrote an application for leave, he will have to be “let go”). This possibility is provided for by the Labor Code of the Russian Federation.
At the same time, the replacement of rest with material compensation is quite strictly regulated by labor legislation. Therefore, this compensation is allowed with some reservations and exceptions.
When is it permissible to replace annual paid leave with monetary compensation?
Not going on vacation and receiving a monetary reward instead of this vacation is possible in accordance with the Labor Code of the Russian Federation. But there are some conditions. Let's look at them in more detail.
So, every employee has the right to choose whether to go on vacation or continue to perform their duties. If the replacement is initiated by the employer, then he does not have the right to force the employee to make such a decision.
It must be voluntary and accepted only by the employee himself. In this case, annual leave is not provided, but a transfer of funds occurs, which is expressed in a certain amount of money.
An employee cannot refuse leave in full and replace it with monetary compensation.
There is an important rule. Complete replacement or waiver of leave is not permitted. Every year an employee has the right to rest and he cannot waive this right in full.
The employer is required to provide at least half of the total duration of annual rest. This rule applies to annual leave.
As for additional periods, they can be completely waived.
How to apply?
When such a decision is made by the employee and agreed upon by management, he must write down an application for payment of material remuneration instead of annual rest.
Like any other decision, such a replacement is formalized by order of the head of the organization. In this case, the order should be issued taking into account several circumstances:
- documents should be prepared with references to the Labor Code of the Russian Federation. The specified references to legal documents will become the basis for issuing the order. Without their execution, the documents will be considered drawn up in violation of the law. And this will entail their cancellation in case of appeal and recognition as illegal. Therefore, the order must necessarily reflect the norms of the Labor Code of the Russian Federation, which regulate compensation for vacation in money;
- it is necessary to indicate which period of rest will be reimbursed based on the order. This period should be specified in days;
- the amount of compensation must be reflected in exact terms.
Thus, the order must be clear and contain all the key points of such an agreement between the employee and the management of the organization.
Download an application to replace part of the vacation with monetary compensation
The order is drawn up according to the standard rules for preparing these documents. Accordingly, the order. the sample must contain the following details:
- date and place of publication of the document;
- full name of the organization. The inclusion of abbreviations and conventional names is not allowed. Only the official abbreviation is allowed;
- the content should include an indication of the facts of replacing vacation with money, reflecting the period and amount of funds transferred;
- it is necessary to make a reference to the employee’s statement;
- order. the sample must be signed by the manager and presented to the person for review.
The employee must also sign it and make a note “read and agree”, as well as indicate the date.
Therefore, the specified structure of the document must be followed. It would be enough. Moreover, forced payments are rarely practiced. Therefore, such a solution, as a rule, suits both parties.
Download the order
Replacement of part of annual paid leave with monetary compensation
The employee is obliged to use at least half of the holidays allotted to him by law. It is not allowed to shorten the period by a large part. Moreover, it cannot be cut for the entire period.
The employee is obliged to use half of it. And he can refuse the rest.
In this case, the calculation is made on the usual basis and is the amount of average earnings multiplied by the number of days for which he refused time.
When it is not allowed to replace vacation with monetary compensation
Article 123 of the Labor Code of the Russian Federation does not allow the replacement of vacation with monetary compensation in the following cases:
- For pregnant women, it is not allowed to reduce the duration of the vacation. This applies to the annual period as well as additional holidays;
- Workers who have not reached the age of 18 also cannot benefit from compensation and must take the entire period off work;
- Employees who perform dangerous and harmful work cannot refuse additional time. Read more about professions with hazardous working conditions here...
In these cases, monetary replacement is not allowed. In other options, employees can write an application and receive half the salary, provided that they spend the same part of the vacation at the workplace.
If you have questions, consult a lawyer
You can ask your question in the form below, in the online consultant window at the bottom right of the screen, or call the numbers (24 hours a day, 7 days a week):
Source: https://www.samso.ru/otpusk/zamena-otpuska-denezhnoj-kompensaciej-obrazec-prikaza.html
Elements of an order
The order can be issued either on a standard A4 sheet or on a special form of the organization. The essence of the latter is that at the top of it are the details of the company whose head is signing the document.
The order consists of three sections:
- The standard header for this document. In it, the order is numbered, details and the name of the organization are written down (if this has not been done previously), and the date of signing is indicated. After that, you can get to the point.
- Main part. The body of the order in the vast majority of cases includes a reference to the law (Article 126 of the Labor Code), the word “I order” and an indication to replace the number of days specified in the employee’s application with material resources.
- Final part. It is fundamentally important that the conclusion contains a link to the employee’s statement (indicating the date of his hiring). Also, at the end, the signature of the manager is required, and, if available, the seal of the organization.
When is it permissible to replace annual leave with cash compensation?
The scope of the annual vacation period is regulated by the legislation of the Russian Federation. According to the Labor Code, the employee is annually provided with 28 days of rest, which are financed by the enterprise. Some groups of employees have a longer vacation period. For example, a mercenary whose work involves hazardous working conditions.
In some cases, employees are given the opportunity to receive financial payment instead of a vacation period without losing their job.
But it is important to understand that only those days of rest that exceed the number of mandatory days can be replaced with monetary compensation.
In a situation where an employee is fired, he is paid financial compensation for the entire period of vacation days allotted to him.
Is it possible to replace vacation with monetary compensation?
There are several options when replacing annual leave with a financial accrual is allowed:
1. When an employee of an organization is dismissed, compensation is paid for all vacation days that were not used. Such accruals are made on the last working day of the dismissed person, or on the next working day - provided that the employee does not appear.
2. At the employee’s insistence, he may be awarded monetary compensation for days of rest exceeding the mandatory annual vacation period of 28 calendar days. Accrual is made on the day of payment of wages, regulated by the organization’s charter. This type of payment is made at the discretion of the employer and may be legally refused.
How to replace annual leave with cash compensation?
To receive financial compensation instead of vacation, the employee must draw up an application addressed to the director of the organization. This document must indicate for what period the employee requires additional payment.
If the employer satisfies the employee’s request, based on the application, an order is issued to credit compensation.
This order is certified by the manager and the employee who will receive the additional payment. After the order is issued, an order is issued to the accounting department of the enterprise.
The accounting employee calculates the required payment, and also directly accrues funds to the employee.
How to write an agreement to replace vacation with monetary compensation?
The agreement to substitute rest must be documented. Namely, there must be an application from the employee for a replacement, and a corresponding order from the manager.
Both documents are written in a free format, but the application must include:
- Employee details, including position;
- The period for which compensation is required;
- Link to Article 126 of the Labor Code of the Russian Federation.
Based on the written application, an appropriate payment order is issued.
Drawing up an order to replace vacation with monetary compensation
An order to pay material compensation instead of the required rest is issued in a free format. The text of the document specifies the period for which the employee is due to be paid.
This type of regulatory document belongs to the category of regulatory documents on the personal staff of an enterprise. It must be entered into the register of orders of the enterprise.
This document must be stored for 75 years from the date of its approval.
The manager endorses the document, after which the employee is familiarized with it against signature. This document may also indicate an accounting employee who is entrusted with the calculation and calculation of compensation. In this case, his signature on the order is also mandatory.
Replacement of annual leave with monetary compensation - sample order
The mandatory points of the order are:
- Number and date of writing the document;
- Information about the employee - full name, position and personnel number;
- The number of days for which compensation is due, indicating the period;
- The basis for this payment is the worker’s application;
- Signatures of all parties to the agreement.
Sample order to replace the vacation period with monetary compensation
Who is not allowed to replace vacation with monetary compensation - Article 126
The procedure for providing accruals for the vacation period is prescribed in Article 126 of the Labor Code of the Russian Federation. According to it, there are certain categories of employees who will be denied the opportunity to replace their required vacation days with a financial payment. These include pregnant employees, minor workers, as well as workers whose work process is associated with harmful working conditions.
It is important to understand that it is possible to receive a cash payment for a vacation only after using the entire period of the main vacation days.
Labor Code of the Russian Federation - Article 126
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Source: https://legionfg.ru/kogda-dopuskaetsya-zamena-ezhegodnogo-otpuska-denezhnoj-kompensaciej/
Compensation calculation
In order not to make a mistake with the specific payment amount, the accountant (or other employee making the calculations) needs to check the formula. It is quite simple: the number of vacation days that are compensated is multiplied by the amount that the employee received on average for 1 working day. When calculating the latter, wages for the previous 12 months of work are taken into account.
Everything that a particular employee earned over the past 12 months is divided by 12, and then by 29.3 (the average number of days in a month).
However, if some days were missed due to illness (and there are sick leaves), then a clarifying formula is used that takes this parameter into account. For example, instead of 12 months, the employee actually worked 10 and 3 days. Then instead of 12 you should substitute 10+3.
These and other nuances of the settlement process are discussed in the Regulations, which were approved by Government Decree No. 922 of December 24, 2021.
In any case, if the vacation is postponed, it must be used no later than next year (or there must be compensation for it). Any other state of affairs is contrary to the law. An order to pay compensation for unused vacation is a legal way to legally formalize payments from an employer to an employee.
Order on granting time off for unused vacation days
The Labor Code suggests that the initiative for such a replacement should come exclusively from the employee. Based on the employee’s application, an order is issued to replace (main or additional) monetary compensation.
After the order is issued, information that the unused period will be replaced by a cash payment must be reflected in the worker’s personal card in the “Vacation” section. If the employer expresses a desire to replace the unused vacation period with a financial payment, then the employee is not obliged to agree to this.
In all other cases, issuing an order for time off on account of vacation is a mechanism to protect the financial interests of the employee.
If the short-term vacation period is paid, the order to provide it to the employee must be transmitted to the accounting department, and there they accrue vacation pay and pay compensation 3 days before the employee is actually released from duties.
Statement In official documentation, the concept of “time off” is replaced by the term “vacation”, or “day off”. The basis for providing it to the employee is a statement written in his own hand, which is drawn up according to a standard template. An application for time off for vacation has a simple structure and is not difficult to draw up.
An example of a leave order for an unused vacation day
A person does not need a large number of documents to register.
Necessary terms Time off This is non-working time that can be taken at any time in accordance with the current legislation Vacation These are days off in the amount of 28 days by law, which can be planned at the beginning of the vacation and taken off in accordance with the vacation schedule In what cases is this possible In other words, time off is an employer’s temporary permission for an employee to be absent from his or her place due to specific circumstances.
If the decision to take on additional work is positive, he indicates what exactly he wants to receive—a monetary supplement or additional rest. The duration of time off in these situations does not exceed five days.
The collective agreement may indicate that the 2-day leave taken by the employee is paid. In this case, the employer is obliged to do this.
In addition, the contract may stipulate a different length of time off for employees.
This indicates: information about the employee: full name, position, structural unit; the period of work of the employee for which it is provided; the number of vacation days replaced by monetary compensation; basis for replacement (employee application).
If an employee takes several days off in the middle of the work week, and then simply subtracts the number of days used from twenty-eight, you will get much more paid days off.
It is better to provide unpaid leave in such cases.
Sometimes it’s really not possible to “take off” the entire vacation, then it’s more convenient to take monetary compensation for part of the vacation, sometimes this option is even more convenient, the main thing here is to know how to process it correctly.
Sometimes the order to go to work on weekends (holidays) already contains information about granting the worker a day off on a certain date or increased pay. Then there will be no need to issue an additional order.
In turn, the average daily earnings of an employee are determined in the same way as when calculating vacation pay (clause 4 of the Regulations, approved by Decree of the Government of the Russian Federation of December 24, 2007 N 922).
Typically, vacation compensation upon dismissal is calculated according to the formulas given above.
If the company management refuses to record time off, the employee has the right to write an appeal to the Labor Inspectorate or to court to resolve the conflict.
Who is entitled to time off and when Time off can be granted on the following grounds:
- the employee worked overtime;
- there is a need for him to perform his work duties on weekends or holidays;
- total processing during the rotation method;
- active participation in the donor movement;
- free blood donation;
- towards future annual leave;
- at your own expense.
The position of the manager signing the document, his full name, date of signing, order number (after its registration in the journal) are indicated. The employee’s signature is also placed confirming that he is familiar with it.
Accordingly, its registration is also not fixed by regulations. But if an enterprise can afford to do this, then it has internal legal and regulatory acts where this is present.
There is no indication in the law that an employee’s application must be motivated by any valid reasons.
That is, it is indicated to whom the application is addressed and from whom it is made. Below these details, in the middle of the sheet, write the word “Application”. And finally, the text of the application itself - it must be clear, concise, and contain the main conditions of the request.
It is imperative to indicate information about the period for which the applicant wishes to receive temporary leave from work (they write in the application - leave for such and such a period, or an additional day off on account of the next annual paid leave).
The statement also indicates the reason for the request:
- marriage;
- birth of a child;
- death of one of the relatives;
- other.
How to place an order for unused vacation
Therefore, unlike vacation, asking your employer for time off is quite difficult to plan in advance.
Time off for vacation: sample When considering an application, the employer must take into account the workload of the workforce and assess the consequences of the employee’s absence from work on the stated day, taking into account the established vacation schedule and production assignment.
The order relates to instructions on personnel. And, for example, together with the order to grant basic leave, it is registered in the logbook for registering orders for personnel. As for the storage time, in the usual case it is 5 years.
The schedule is drawn up at the end of the current year with the calculation of vacations for the next year. Not only the order of priority is taken into account, but also the interchangeability of workers. Therefore, making any changes to the schedule will certainly affect other workers.
Therefore, you need to obtain permission from your superiors to use vacation in parts. This is precisely the problem when asking for time off on account of a future vacation. Rule 2.
An employee who has worked in an organization from 5.5 to 11 months is paid compensation for the entire annual leave if he was fired (clause
Order to provide unused part of vacation
At the request of the employee, it is allowed to replace with monetary compensation a part of the annual paid leave exceeding 28 calendar days (Art.
But if the employer considers the reason valid and does not object, he must issue an order to provide paid leave based on the employee’s application. It is issued as a regular vacation, according to a unified form, or can be compiled arbitrarily. There is no concept of “time off on account of vacation” in the Labor Code.
The order does not need to be issued if the fact of granting time off is agreed upon in advance in another administrative document - for example, in an order about going to work on a holiday.
Time off for vacation (sample)
- the application is accompanied by documentary evidence of the reason that prompted the employee to apply - for example, this could be a copy of the application to the registry office, a copy of the death certificate of a family member or the birth of a child;
- then the employer reviews the application and, if approved, issues the appropriate visa;
- the approved application goes to the personnel department, where, on its basis, an order is prepared confirming that the employee has received an exemption from official duties, with or without wages.
Source: https://engmax.ru/novosti/5930-prikaz-o-predostavlenii-otgulov-v-schet-neispolzovanykh-dney-otpuska.html
