Limits of what is permitted: we determine the period of leave without pay at the initiative of the employee - the maximum period and the minimum

What is leave without pay?

The concept under consideration means exemption from the performance by an employee of his professional duties for a certain period by agreement between the employee and the employer. When an employee goes on vacation “at his own expense,” no monetary settlement is made with him, compensation is not taken into account and is not paid.

The employee writes a statement containing a request for leave in the prescribed form.

Leave without pay is issued by order. Dates indicated in documents cannot be entered backdated. The order specifies the type and duration of leave. It is important to consider that leave without pay is permitted if there are compelling reasons that the employee indicates in the application.

Depending on the duration, leaves without pay are divided into short-term and long-term. Short-term vacation lasts up to 7 days, long-term more than 7 days, including weekends. By mutual agreement, the date of leaving the vacation is shifted if the return to work falls on a holiday.

How is unpaid leave processed?

The employee writes an application for leave without pay, indicates its start and end dates and the reason. If he is entitled to leave by law, he attaches the relevant documents: a certificate from an educational institution, a birth certificate with a dash in the “Father” column or a mother’s death certificate, a certificate from a second job.

The employer makes a decision on the application, issues an order, and enters information into the employee’s personal card. If the company keeps a time sheet, enter the information there. The employee signs this order, and then the leave at his own expense acquires legal force.

Leave without pay, legal basis and procedure for granting

An employer can grant leave only upon the employee’s written request and on the basis of an order. In the application, the employee describes the circumstances that give him the right to take leave and the number of days he needs. The date from which the employee goes on vacation and the date of exit are indicated.

In addition to valid reasons expressly defined by law, the employer has the right to recognize other reasons as valid. Typically, an employee goes on leave at his own expense for family reasons. Working mothers of sick young children often apply for unpaid leave when they need care and there is no way to take sick leave. The employer usually accommodates pensioners and pregnant employees and also provides leave.

In the modern labor market, there has already been a practice when an employee is sent on leave without pay for a period of notice before a reduction in the organization's staff; it is prohibited to issue such leave retroactively. Also, an employee can refuse vacation before being laid off.

It is important to note that the employee’s length of service, on which annual paid leave depends, includes leave “at his own expense” lasting no more than two weeks during the year; a period exceeding the specified period is not included in the length of service. Cash payments for leave of this type are not made to the employee. Weekends do not affect the duration of unpaid leave.

The employer issues an order to grant leave in the prescribed manner, indicates the dates when the employee goes on vacation and returns, and notifies the employee about the issuance of the order. The order is stored in the organization.

How are issues regarding vacation resolved between an employee and an employer?

The parties need to agree on leave and formalize it: the employee writes a statement, the employer issues an order in which the employee signs. To be convincing, the employee should bring documents that confirm the seriousness of the reason why leave is required. An employer can rely on the organization’s local regulations if they stipulate the conditions for unpaid leave. Correctness is important, since an employee can go to court to protect his rights, and the company may face fines for violations with vacations.

If an employee goes on vacation without the consent of the employer, he can fire him for absenteeism. But if it turns out that the employee could not have been refused, he can be reinstated in his position through the court.

If the employer wants to recall an employee from vacation, this is also resolved through negotiations; the employee returns voluntarily or refuses to interrupt the vacation without any consequences for himself.

If an employee changes his mind about taking a vacation and wants to leave unpaid leave early, this can be done. You need to contact the employer, discuss this and write an application for early termination of vacation.

If there is downtime at a company, the employee cannot be sent on vacation at his own expense, this would be a violation of the law. During the period of downtime, the employee is entitled to a salary in the amount of ⅔ of the usual salary or rate.

Maximum period of leave without pay

The Labor Code determines the employer’s obligation to provide leave of the specified type to certain categories of employees, or to any employees if circumstances have occurred that require the mandatory provision of leave without pay.

Refusal to grant leave in this case is a violation of the law; the employee will not be held liable if he goes on leave without pay, having notified the manager. The list of such circumstances and groups of workers is determined by the Labor Code of the Russian Federation. The duration of leave is limited to a certain number of days per year for each category of employees, or upon the occurrence of appropriate circumstances.

The employer has the right, based on an employee’s written application and a specially issued order, to grant leave without pay for a certain number of days a year to any employee; in this case, the law does not establish requirements for how long the vacation period will take.

The provision of leave without pay is regulated, in addition to the Labor Code of the Russian Federation, by other laws and legal acts that may impose certain restrictions on the duration of leave.

For example, a civil servant cannot take indefinite leave of the type in question. This category of employees is allowed leave without pay for a duration of no more than one calendar year. This imperative rule is established by the Federal Law “On State Civil Service in the Russian Federation”.

For employees not related to the civil service, the vacation period is unlimited. A special situation exists for persons engaged in teaching activities. A teacher may go on unpaid leave in order to improve professional teaching qualifications, without a time limit.

Can management call an employee to work early?

Current legislation does not regulate this issue in any way. However, there is an opinion that you can call an employee from extraordinary leave in the same manner as from paid leave. It is established in Art. 125 of the Labor Code of the Russian Federation and states that in order for a person to return to work, his personal consent is necessary. Coercion in this situation is illegal.

REFERENCE. If a person returns to work early, the remaining days cannot be added to another vacation or provided to him in the form of days off and days off.

Reasons for calling

The law does not provide for circumstances for calling employees to work early. The management of the enterprise can only ask them to begin their official duties earlier. However, managers do not have the right to demand this, nor do they have the right to impose penalties in case of non-compliance with their demands.

If family or other compelling circumstances arise, each employee can agree with their superiors on the registration of extraordinary unpaid leave, and for absolutely any period.

Disabled people, pensioners, students, veterans and relatives of deceased military personnel have the right to be released from work upon request. In all other cases, the employee and his supervisors must reach an agreement.

Conditions for receiving leave without pay

The labor law defines groups of employees who are entitled to unpaid leave and is provided upon request, and also gives the employer the right to send any employee on leave, taking into account the reasons specified in the justification for receiving leave, if they are considered valid.

In addition to the list of persons who are entitled to leave, and the conditions when the provision of leave is an obligation, the employer can establish other lists and conditions, taking into account the specifics of the work or schedule, enshrining them in collective agreements, orders and other internal regulations that are stored in the organization.

The employer has the right to provide leave without pay to absolutely any employee, in addition to the types of categories to whom he is obliged to provide leave, if an agreement has been reached on this and an order has been issued. The employee has the right to leave vacation early at his own expense.

Rationale

Cases in which the employer has an obligation to provide leave without pay are listed in Art. 128 Labor Code of the Russian Federation.

The employer is obliged, based on a written application from the employee, to provide leave without pay:

• participants of the Great Patriotic War - up to 35 calendar days per year;
• for working old-age pensioners (by age) - up to 14 calendar days per year;
• parents and wives (husbands) of military personnel, employees of internal affairs bodies, the federal fire service, customs authorities, employees of institutions and bodies of the penal system, compulsory enforcement authorities, who died or died as a result of injury, concussion or injury received while performing the duties of military service ( service), or due to illness associated with military service (service) - up to 14 calendar days per year;
• for working disabled people - up to 60 calendar days per year;
• employees in cases of the birth of a child, marriage registration, death of close relatives - up to five calendar days;
• in other cases provided for by this Code, other federal laws or a collective agreement.

This norm does not include the need to care for a sick family member in such cases.

However, the employer has the right, for family reasons and other valid reasons, to grant the employee, upon his written request, leave without pay, the duration of which is determined by agreement between the employee and the employer (Article 128 of the Labor Code of the Russian Federation).

That is, leave without pay can be granted if the employer considers the reason valid and agrees with the employee’s absence.

The employer’s obligation to provide leave at his own expense may be provided for in a collective agreement (Article 41 of the Labor Code of the Russian Federation).

So, in accordance with Art. 263 of the Labor Code of the Russian Federation for the following categories of workers, a collective agreement may establish annual additional leaves without pay at a time convenient for them for up to 14 calendar days:

• an employee who has two or more children under 14 years of age;
• an employee who has a disabled child under 18 years of age;
• a single mother raising a child under 14 years of age;
• a father raising a child under 14 years of age without a mother.

However, transferring this leave to the next working year is not allowed.

Additional materials on granting unpaid leave

Extract from: Ready-made solution: How to provide additional leave without pay to parents with many children (ConsultantPlus, 2021)

1. Is the employer obliged to provide additional leave without pay to parents with many children?

Yes, if additional annual leave without pay for a parent with many children is provided for by a collective agreement or local regulations. The duration of such leave is as determined by the relevant document (Part 2 of Article 22 of the Labor Code of the Russian Federation).

In other cases, you provide regular leave to large families at your own expense, if you agree (Part 1 of Article 128 of the Labor Code of the Russian Federation). However, such an employee may apply to you for leave at his own expense and on the grounds provided for in Part 2 of Art. 128 of the Labor Code of the Russian Federation (for example, he asks for five calendar days in connection with the birth of a child), then he cannot be denied leave without pay on the appropriate grounds.

1.1. Who is meant by a parent with many children?

The concept of “parent of many children” is not defined by the Labor Code of the Russian Federation.

In practice, these include, in particular, workers with two or more children under the age of 14 years. They, taking into account Art. 263 of the Labor Code of the Russian Federation, a collective agreement may provide for up to 14 calendar days of annual additional leave at their own expense at a time convenient for them (without transfer to the next working year).

When a collective agreement or local regulation provides for leave for parents with many children, but it is not determined who belongs to them, we recommend that you be guided by regional regulations.

Extract from: Ready-made solution: How to arrange leave to care for a sick family member (ConsultantPlus, 2021)

1. What kind of leave to care for a sick family member should an employee be granted?

The Labor Code of the Russian Federation does not provide for such type of leave as leave to care for a sick family member. Usually, if an employee requests it, he is provided with unpaid leave or annual paid leave (both basic and additional). An exception is if such special leave is provided for in a local regulation or collective agreement or, for example, in an industry agreement for your organization. Then provide it to the employee, as provided in the relevant document (part 1 of article 8, part 1 of article 9, part 1, 2 of article 22, part 2 of article 41, part 8 of article 45 of the Labor Code of the Russian Federation ).

Let us remind you that sometimes you cannot refuse an employee leave at his own expense or annual paid leave, regardless of why the employee asks for it. For example, you cannot refuse leave without pay (up to 14 calendar days per year) to an old-age pensioner. Or on annual paid leave for a woman at the end of her maternity leave (Part 2 of Article 128, Article 260 of the Labor Code of the Russian Federation).

Note that to care for a sick family member, an employee, as a rule, takes sick leave (clause 1, part 2, article 1.3, clause 2, part 1, article 5 of Law No. 255-FZ).

Extract from: Question: What is the procedure for providing an employee with parental leave up to 6, 7 or 14 years of age? (Expert consultation, 2021)

What is the procedure for granting an employee leave to care for a child up to 6, 7 or 14 years of age?

A collective agreement or a local act may provide for the provision of additional paid leave or unpaid leave to care for a child under 6, 7 or 14 years of age.

Leave is granted on the basis of an order issued based on the employee’s application.

The legislation provides for the provision of parental leave only up to three years (Article 256 of the Labor Code of the Russian Federation). Parental leave is not directly provided for caring for older children.

However, other options are also possible for releasing an employee from work due to the need to care for a child over three years old.

Part-time work

By agreement of the parties to the employment contract, an employee may be established on a part-time working schedule (part-time working day (shift) and (or) part-time working week, including with the division of the working day into parts) (Part 1 of Article 93 of the Labor Code of the Russian Federation).

The employer does not have the right to refuse to establish part-time working hours, including (Part 2 of Article 93 of the Labor Code of the Russian Federation):

• one of the parents (guardian, trustee) with a child under 14 years of age;
• a person caring for a sick family member.

Thus, an employee in this situation has the right to work part-time.

Additional paid leave

Caring for a child under 6, 7 or 14 years of age does not apply to the grounds for providing additional paid leave provided for by the Labor Code of the Russian Federation (Article 116 of the Labor Code of the Russian Federation). However, the employer has the right to establish the possibility of providing such leave in a collective agreement or local act. There is judicial practice confirming the legality of such provisions (see, for example, the Appeal Ruling of the Supreme Court of the Chuvash Republic dated March 11, 2015 in case No. 33-1090/2015).

Leave without pay

Cases in which the employer has an obligation to provide leave without pay are listed in Art. 128 Labor Code of the Russian Federation. This norm does not include the need to care for a child under 6, 7 or 14 years of age in such cases. Thus, caring for a child under 6, 7 or 14 years of age does not give the employee an unconditional right to such leave.

However, the employer has the right, for family reasons and other valid reasons, to grant the employee, upon his written request, leave without pay, the duration of which is determined by agreement between the employee and the employer (Article 128 of the Labor Code of the Russian Federation).

That is, leave without pay can be granted if the employer considers the reason valid and agrees with the employee’s absence.

It’s a different matter if the employer’s obligation to provide leave at his own expense is provided for by a collective agreement (Article 41 of the Labor Code of the Russian Federation). In this case, leave to care for a child up to 6, 7 or 14 years of age must be provided without fail, subject to the employee’s will.

We also note that in accordance with Art. 263 of the Labor Code of the Russian Federation for the following categories of workers, a collective agreement may establish annual additional leaves without pay at a time convenient for them for up to 14 calendar days:

• an employee who has two or more children under 14 years of age;
• an employee who has a disabled child under 18 years of age;
• a single mother raising a child under 14 years of age;
• a father raising a child under 14 years of age without a mother.

However, transferring this leave to the next working year is not allowed.

Procedure for granting leave

When granting leave based on the employee’s application, a corresponding order is issued, which will indicate that the employee is granted additional paid leave or leave without pay, and the number of calendar days of leave. The employee must be familiarized with this order against signature. Additional paid leave is subject to payment in accordance with Part 9 of Art. 136 Labor Code of the Russian Federation.

In addition, certain categories of employees, in cases provided for by law, are granted annual paid leave at their request at a time convenient for them, in particular, employees who have three or more children under the age of 12 (Part 4 of Article 123, Article 262.2 Labor Code of the Russian Federation, Letter of the Ministry of Labor of Russia dated November 20, 2018 N 14-2/OOG-9166).

Prepared based on material by M.A. Krasnikova /Consulting and Analytical Center for Accounting and Taxation

Types of such holidays

The employer is obliged to provide leave without pay by issuing an order; leave can be taken by:

• pensioners, if they continue to work upon reaching retirement age - for a period of no more than 14 days a year, without calculation;
• participants of the Great Patriotic War, for a period of no more than 35 calendar days a year, without payment;
• spouses, mothers and fathers of military personnel or law enforcement officers who died during service, including on a business trip, or from an illness acquired during service, without calculation - for a period of up to 14 days a year;
• disabled people - for a period of no more than 60 days a year, without calculation.

Upon application, the employer is obliged to provide leave in the event of the death of relatives, registration of marriage, birth of children - for a period of up to 5 days, without calculation.

This list is not closed. The laws of the Russian Federation grant the right to leave without pay to other categories of employees, for example:

• combat veterans;
• a sick employee without sick leave;
• pregnant women;
• candidates and members of election commissions during elections;
• employees working part-time (or seconded);
• persons combining work and study;
• other categories of workers.

Collective agreements and other internal documents may provide for and take into account lists of persons to whom the employer undertakes to give unpaid leave and other additional days of rest. Refusal to provide such provision is unacceptable, as is cancellation of the order, for example:

• to a mother or father who has two or more children under 14 years of age - for up to 14 days a year;
• a single mother, or a father raising a child without a mother, if the child is not older than 14 years - for the same period;
• mother or father raising a child with a disability under 14 years of age - for the same period. In addition, the mother or father of a disabled child is entitled to additional days off to care for the child or for other purposes.

When does an employer have no right to refuse an employee?

The law provides for several categories of employees who do not need the consent of their superiors to take leave at their own expense.

Now, let's determine the duration of administrative leave at the initiative of the employee: the maximum period and the minimum.

Don’t forget about employees who are entitled to additional leave. You can count on it:

1. Combat veterans.
2. Parents with many children.
3. People working in the Far North region.
4. Working pensioners.
5. Persons working in hazardous working conditions.
6. People affected by the accident at the Chernobyl nuclear power plant.
7. Persons who do not have a fixed working day.

Sick leave and maternity leave during and after vacation

The law determines how the organization will combine sick leave and vacation, and pay the employee during the period of leave without pay.

If a pregnant employee goes on maternity leave while on leave without pay, the employer is obliged to calculate and pay her maternity benefits if she is insured. The benefit for a pregnant employee is paid at one hundred percent of her average earnings, taking into account the hours worked.

Payment for sick leave depends on the duration of the illness and takes into account the number of days the employee leaves. If an employee gets sick during vacation, but recovers before it ends, the employer will not pay sick leave because the employee took leave without pay and was released from work. If the illness began during vacation, but the person recovered after its end, the employer is obliged to count the working hours and pay sick leave taking into account the date when the employee’s vacation ended, according to the order.

Family leave for employees of the Ministry of Internal Affairs

The procedure for its provision is regulated by Art. 61 Federal Law No. 342 of November 30, 2011. Its duration during the calendar year cannot be more than 10 days. Within this period, leave can be granted an unlimited number of times. In the relevant law regulating the procedure for serving in the internal affairs department, family circumstances are equated to personal ones. Their list includes:

• Death of a close relative (parents, children, siblings);
• Serious illness of a close relative;
• Fire or other emergency encountered by the employee or his close relatives;
• Situations when an employee requires psychological rehabilitation.

Expert commentary

Gorbunova Olga

Lawyer

The duration of the vacation period does not include travel time to the vacation destination and back. Additional leave can be added to the main one, the duration of which is, on average, 30 days, but can be higher, depending on the employee’s length of service. The leave is issued on the basis of the employee’s report to his superiors and signed by the head of the relevant department.

Responsibility for refusal to grant leave without pay

If the employer refuses to provide unpaid leave in cases expressly provided for by law, the employee has the right to go to court. The employer has no grounds to unlawfully apply liability measures to the employee, this means that the employee can go on leave, regardless of the refusal to grant it, subject to notification to the employer.

Notification shall be given in writing. An unlawful refusal to grant permission to take leave threatens the employer with legal proceedings and the collection of compensation from him if the employee suffers losses due to the employer’s refusal to take leave. Retroactive registration of leave without pay is also considered a violation; in this case, the date of leaving the leave is shifted and the employee’s rights are violated.

Author of the article

conclusions

The list of mandatory reasons for providing days off without pay is listed in Article 128 of the Labor Code of the Russian Federation. All other grounds, called family circumstances, are considered individually by the employer.

It is not recommended to ask too often for days off at your own expense for family reasons, even if the director is loyal to the staff. Workers should not abuse the employer’s loyal attitude towards family problems; this may adversely affect the business reputation of employees in the future.