Is it possible to replace the entire vacation with monetary compensation. The procedure for replacing an unaccompanied vacation with monetary compensation. Can an employee work without vacation

It can be chosen not by days of rest, but compensated by money.

Such cases can be due to both production necessity and the desire of the employee himself. However, it is not always possible to pay compensatory funds for an unaccompanied vacation. Sometimes, regardless of the wishes of the parties, the employee will be obliged to go on a well-deserved rest, for the entire set vacation period, or at least part of it.

All the nuances associated with replacing leave with compensation are spelled out in the Labor Code. Russian Federation... The employer has no right to deviate from the rules specified in the article, and violations of the established norms can entail serious troubles for the organization. For this reason, it is very important to clearly systematize information about when vacation can be replaced, and when a replacement is not allowed in any case.

According to the Labor Code of the Russian Federation, each employee has the right to annual leave, which is granted for a period of at least 28 days and must be paid at the rate of a specific employee. Organizations, however, have the right to increase the set amount of rest at their discretion by an unlimited number of days.

Since the right to rest is still not an obligation, theoretically a person can replace part of his vacation with monetary compensation or even replace the entire amount of rest with money.

Article 126 of the Labor Code of the Russian Federation prescribes that each worker can, at his discretion, claim compensation for a period that exceeds the legalized 28 days. You can make such a replacement regularly, every year. In addition, the legally established amount can be exchanged for money without the obligatory rest. But clear instructions are given that a person cannot remain without rest for more than two years in a row. The employer is simply obliged to make sure that his employees rest for the allotted time at least once every 24 months. Therefore, a complete replacement of vacation with monetary compensation is possible only once every two years. But partial compensation, for the period that exceeds the deadlines set by the Labor Code of the Russian Federation, is possible at any time, without restrictions.

Who can qualify for compensation?

Procedure for payment of compensation

The accrued payments should be calculated according to the general rules. That is, for their calculation, income is taken over the last 12 months, and if a person has worked less, then for the worked period.

The total amount of money earned is divided by the volume of calendar days and it turns out average wages for one day.

The average number of calendar days in a month is taken as 29.3. The average daily indicator is multiplied by the number of compensated days, which are indicated in the application and order. The allowance is paid for a calendar day, and not for the equivalent of fallen work shifts for a given period.

The payment procedure differs depending on the situation:

When paying in a working order, the term for transfers of the calculated amount is not specified in the Labor Code of the Russian Federation. It is recommended to make payments as soon as indicated in the date.
If a person leaves, then it is imperative to make the final settlement with him on the last working day.

Together with vacation compensation, all other unpaid amounts that were earned by the employee for the worked period are also paid.

It will be interesting for you

The part of the annual paid leave exceeding 28 calendar days, upon written application of the employee, can be replaced with monetary compensation.

When summing up annual paid leave or transferring annual paid leave to the next working year, monetary compensation may replace a part of each annual paid leave exceeding 28 calendar days, or any number of days from this part.

It is not allowed to substitute monetary compensation for the annual basic paid leave and annual additional paid leaves for pregnant women and employees under the age of eighteen years, as well as annual additional paid leave for employees engaged in work with harmful and (or) dangerous conditions labor, for work in appropriate conditions (except for the payment of monetary compensation for unused leave upon dismissal, as well as the cases established by this Code).

Comments to Art. 126 of the Labor Code of the Russian Federation

1. Replacing leave with monetary compensation is possible only in two cases: when a part of the employee's annual paid leave exceeds 28 calendar days and when the employee is dismissed from work in the presence of vacations unused by the day of dismissal (Article 127 of the Labor Code).

2. The amount of monetary compensation for the vacation is determined according to the rules specified in Art. 139 TC. To receive monetary compensation, the employee must apply to the employer with a written application to replace the vacation with monetary compensation. It should be borne in mind that replacing vacation with monetary compensation is a right, and not an obligation of the employer.

3. When calculating monetary compensation for unused vacation, the same rules apply as when calculating wages for vacation.

4. The provisions of the commented article also apply to vacations not used by employees in previous years.

The Code does not provide a definition of unused leave. In our opinion, unused vacation is the annual paid vacation provided for by the vacation schedule in this organization, which the employee, due to some circumstances, could not take advantage of.

5. On the application of the provisions of the commented article, see the letter of the Ministry of Labor of Russia dated April 25, 2002 N 966-10.

New edition of Art. 126 of the Labor Code of the Russian Federation

It is not allowed to substitute monetary compensation for the basic annual paid leave and annual additional paid leaves for pregnant women and employees under the age of eighteen years, as well as annual additional paid leave for employees engaged in work with harmful and (or) hazardous working conditions for work in appropriate conditions. (except for the payment of monetary compensation for unused leave upon dismissal, as well as the cases established by this Code).

Commentary on Article 126 of the Labor Code of the Russian Federation

Section 126 Labor Code The Russian Federation now resolves the question of what part of the leave is subject to replacement with monetary compensation in a situation of summing up vacations over several years, it is proposed to establish that "a part of the annual paid vacation exceeding 28 calendar days, upon written application of the employee, can be replaced with monetary compensation. As a result, the practice of compensating for vacations left by employees from previous years should stop.

By agreement between the employee and the employer, the annual paid leave may be divided into parts. Moreover, at least one of the parts of this leave must be at least 14 calendar days.

The recall of an employee from vacation is allowed only with his consent. Such recall may occur for operational reasons. The legislator does not establish the form of such consent. In order to avoid misunderstandings, it is advisable for the employer to obtain such consent from the employee in writing. The recall from the vacation is drawn up by an order (order) of the employer, which, by agreement of the parties, indicates when the employee will be provided with the unused part of the vacation.

The part of the leave not used in connection with this must be granted at the choice of the employee at a time convenient for him during the current working year or added to the leave for the next working year.

It is not allowed to recall workers under the age of eighteen, pregnant women and workers employed in jobs with harmful and (or) hazardous working conditions from vacation (Article 125 of the Labor Code of the Russian Federation).

Labor legislation allows for the replacement of annual paid leave with monetary compensation.

The part of the annual paid leave exceeding 28 calendar days, upon written application of the employee, can be replaced with monetary compensation.

When summing up annual paid leave or transferring paid leave to the next working year, monetary compensation may replace a part of each annual paid leave exceeding 28 calendar days, or any number of days from this part.

Another commentary on Art. 126 of the Labor Code of the Russian Federation

1. Article 126 of the Labor Code of the Russian Federation allows the replacement of annual paid leave with monetary compensation. Since monetary compensation can only replace that part of the vacation that exceeds 28 calendar days, replacing part of the vacation with monetary compensation is possible if the employee is entitled to an extended vacation or additional vacation (additional vacation).

2. In the case of the simultaneous granting of leave for two years or more (see Art. Art. 124, Part 2 of Art. 125 of the Labor Code of the Russian Federation and a commentary to them), parts of each annual paid leave that exceed 28 calendar days can be replaced with monetary compensation , or any number of days from these parts. Thus, for each working year, the employee must actually use at least 28 calendar days of vacation.

3. From the text of Art. 126 of the Labor Code of the Russian Federation, it follows that to replace the corresponding part of the vacation with monetary compensation, a written statement of the employee is not enough, the consent of the employer is also required, who can, but is not obliged to replace part of the vacation with monetary compensation.

4. Replacement of monetary compensation for annual paid leave, both basic and additional, for pregnant women and employees under the age of 18 is not allowed.

5. With regard to the replacement of monetary compensation for leave for workers employed in work with harmful and (or) hazardous working conditions, part 3 of Art. 126 of the Labor Code of the Russian Federation (as amended by Federal law 90-FZ dated June 30, 2006) has created some uncertainty: this norm prohibits monetary compensation for this category of workers only additional paid leave for work in appropriate conditions, leaving open question on the possibility of monetary compensation for the main paid vacation and other additional vacations. Based on the requirements of labor protection, monetary compensation for this category of employees of the main paid leave would lead to the loss of the meaning of giving them additional leave for work in harmful and (or) dangerous working conditions.

Replacement of part of the main rest (over 28 days) with compensation;

Art. 127 - the procedure for compensating unspent rest days upon dismissal.

From the above norms, it follows that the employee has the right to ask for compensation:

for a part of a paid vacation exceeding 28 days;
for additional days of rest.

The provisions of the Labor Code of the Russian Federation determine exceptions, restrictions in terms of compensation payments, as well as situations in which these types of payments are provided for in mandatory.

Restrictions on the provision of compensation

An employee's unconditional right to compensation

You cannot replace basic rest with compensation for the following category of workers:

persons who have not reached the age of majority;

women in position at any stage of pregnancy;

persons exposed to radiation due to the Chernobyl accident;

persons working in harmful conditions(applies to 7 extra days)

Upon dismissal, the employee has the right to take compensation in cash for the unused days of any paid vacation

(vacation in this case is provided only at the discretion of the employer)

The employer retains the right, but not the obligation, to award compensation instead of granting leave. So, quite on a legal basis, the head of the organization has the right to refuse compensation for vacation for reasons of a production nature. When making a decision, the responsible person also takes into account the conditions and procedure for providing compensation payments prescribed in the collective agreement of the organization.

The procedure for registration of compensation payment instead of paid leave

The sequence of actions of the employee when receiving compensation is the same in all situations. He is the initiator, therefore, he has to apply to the employer with this request in writing.

Stages of registration	Explanations
The employee writes an application to replace the vacation with a compensation payment	The appeal is drawn up in free form indicating the reason for non-use vacation days, after which it is transferred to the employer for approval
Consideration of the subject of treatment by the employer	If there is no objection, the employer makes a note on the application
Issuance of an order for payment of compensation	There is no standard form for this type of order. Therefore, it is compiled arbitrarily, taking into account uniform requirements. (the standard should include an order to replace the leave with compensation indicating the number of days, a reference to the basis, the appointment of persons responsible for the execution of the order)
Making notes in personnel documents	Section VIII "Vacation" of the applicant's personal card records the type of rest, the period of work, the number of days that are compensated, with a note on replacing these vacation days with this payment In the vacation schedule under column "10", an entry is made about the replacement made with reference to the order
Payment of money to the applicant	After documenting the accounting department has the right to charge the applicant with the money owed

An employee has the right to apply for a compensation payment after 6 months of work in one organization. From that moment on, he acquires the right to another vacation and the privileges associated with it.

Common mistakes when replacing vacation with compensation

Description of the disputable situation

The right decision

The employee demands (not asks) to pay money for 3 days of paid extended vacation, referring to the fact that this is the part of the rest that is due to him in excess of the prescribed 28 days of paid paid rest.

Accordingly, this part (3 days), according to the employee, the director is obliged to replace with a compensation payment.

The employer refuses payment to the applicant for a production reason

In this situation, the applicant is not entitled to demand compensation from the director. He can only apply with a request to replace 3 days of vacation with compensation.

The employer is not obliged to grant his request.

Within the framework of the law, the director has the right to both consent and refuse this payment.

Expert opinion on the issue of replacing leave of public civil servants with compensation

The Ministry of Labor, in its next letter N 18-4 / 10 / B-180 of 01/18/2016, draws the attention of civil servants to the amendments to Article 46 of the Federal Law No. 79 of 07/27/2004 that have come into force. The innovations concern the minimum duration annual leave, the procedure for transferring a part of it to the next year, as well as its partial replacement with a compensation payment.

The new edition of this article defines the unconditional right of this category of employees to a minimum 28-day annual rest. Moreover, the employer (his representative) is allowed only in exceptional situations to transfer to the next year that part of it that exceeds 28 days. Also, this part can be replaced with a compensation payment on the basis of a written request from an employee and if the financial resources of the wage fund are available at the time of the appeal.

Thus, a civil servant can exercise the legal right to use the rest in full or ask the employer (his representative) to pay him compensation in money for a part of the vacation that exceeds the prescribed 28 days. If the exceeded parts of the rest are not used in a timely manner and are not compensated for, then compensation payment is provided for them upon dismissal from service (termination of the contract, dismissal).

This letter is certified by the Deputy Minister of the Ministry of Labor, the active state adviser of the Russian Federation of the 2nd class, Alexei Anatolyevich Cherkasov.

Example 1. Application for partial replacement of vacation with monetary compensation

Manager Valentinova S. N. has been working at Project LLC for the sixth year. By the beginning of the current 2018, the employee has unused days of annual leave for the period from 06.12.2016 to 07.12.2017. It is about the part of the next rest, which exceeds 28 days.

To receive money for unspent days of rest (there are 9 in total), the manager must write an application for compensation. As a standard, the applicant in the appeal must indicate:

the number of unspent rest days for which money should be paid (nine);
type of rest (regular).

Example 2. Order on partial replacement of vacation with monetary compensation

The data from the first example is taken as a basis. So, the manager Valentinova S. N. LLC "Project" turned to the director with a request to compensate with money for 9 days of unspent rest for the past period.

The registration procedure requires the approval of the application with the employer. Further, an employee of the personnel department must, on its basis, issue an order on the partial replacement of the compensation leave. A ready-made model order of the director contains:

order to replace rest with compensation (indicating the number of days to be compensated);
the basis for this decision;
determination of responsible persons who will make notes in the documentation, accrue money to the employee.

Answers to frequently asked questions

Question number 1: How can an employee receive compensation for a portion of the unused vacation, coupled with the main vacation?

As a standard, he should write one application for compensation and rest in the name of the director. In it you need to indicate the type, time of rest, the number of days for which you need to pay money.

Tenant following uniform order, must leave his resolution on the application submitted to him, that is, express his consent. After that, employees of the personnel department issue an order, make appropriate notes in the documentation (personal card, vacation schedule). Further, the accounting department issues the money owed to the applicant.

Question number 2: The employee did not use the next annual leave, so it was completely transferred (all 28 days) to another year. It turns out that this year he is entitled to 2 vacations (56 days). Can he take compensation instead of the postponed last year's rest?

No, the employer will refuse him. The vacation was postponed, but its duration has not changed. In this situation, the employee and the employer have the right, by agreement: to divide the vacation into parts or to combine it.

The question of the possibility of obtaining cash unused leave worries many workers. Employees want to acquire their material compensation and, meanwhile, continue to work.

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This issue is especially relevant for persons whose vacation has been postponed. In their situation, the duration of rest becomes longer than the standard norm, which in a normal situation is enough to fully rest.

The subtleties of the unused rest of the employee

Art. 126 of the Labor Code of the Russian Federation indicates that the employee has the right to receive compensation. However, it should be understood that the norm is formulated in such a way that this possibility is not absolute. That is, the employee and the employer must come to an agreement to replace the leave with compensation. The mere desire of the employee is not the basis for calculating and issuing funds for the days of rest not provided to him.

In addition, the legislator has identified employees who cannot exercise the relevant right:

pregnant women;
employees who have not reached the age of majority;
employees carrying out work with harmful, hazardous working conditions.

All employees, without exception, have the right to receive funds for unused days of rest upon dismissal.

The employee will be able to purchase the calculation on the last day of work. at the same time, they are calculated in proportion to the time worked.

Who is it for?

Article 126 of the Labor Code of the Russian Federation indicates that the employee, on his own initiative, has the right to replace unused vacation days with material compensation. However, not all employees will be able to take advantage of this privilege. If a person is supposed to rest for 28 calendar days, then he does not have the right to be replaced.

The legislator has provided for this possibility only for those employees whose vacation time is more than the standard period. This is possible in a situation where an employee has the right to claim an additional day of rest per year. Employees of certain professions are entitled to extended leave. They can also replace rest days in excess of 28 days with monetary compensation.

The categories of workers who are able to qualify for extended leave are defined in Government Decree No. 466. For example, they include teaching staff, leaders educational organizations, their deputies, as well as persons holding similar positions in the structural divisions of such institutions.

Minors are entitled to extended leave. They are entitled to annual rest for 31 calendar days. However, they are not subject to the provision on replacing leave with monetary compensation. Labor legislation directly restricts this opportunity for minors.

In accordance with Federal Law No. 79, civil servants who fill higher and main positions have 35day annual compensated leave. For municipal employees, the rest period is 30 days(more for individual employees).

Also, other categories of employees in the civil service are entitled to extended leave:

judges - from 30 working days;
employees of the prosecutor's office, police, customs - from 30 calendar days.

People with disabilities and older workers have the right to apply for extended leave, the duration of which is 30 calendar days.

It is also necessary to note the following categories of workers:

rescuers of professional services - 30-40 days (the specific period is determined by the length of service);
members of the Federation Council and deputies of the State Duma - 42 days;
citizens who work with chemical weapons - 49 or 56 days (determined by specific working conditions);
staff medical organizations who are engaged in the diagnosis and treatment of HIV patients or work with materials containing the corresponding virus - 36 working days.

Additional vacation days are due to the following persons:

Exercising a function in conditions of irregular working hours.
Employed in hazardous or hazardous industries.
Persons who took part in the elimination of the results of the disaster at the Chernobyl nuclear power plant, as well as those who lived in the area during the accident.
Workers working in the areas of the KS.
And also some other categories.

How many days can be reimbursed?

How many days the employee will be reimbursed for is specific in each case, taking into account the length of the paid rest period.

Here are some illustrative examples.

Head of the sales department Ivanov A.P. concluded with a clause about irregular working hours. Article 119 of the Labor Code of the Russian Federation determines that he has the right to receive 3 additional days for vacation. Thus, at his own request, Ivanov A.P. can replace rest during this period with monetary compensation.

At the assistant of the prosecutor Alekseeva P.G. paid leave each year is equal to 30 calendar days. She can submit a written application for the replacement of 2 days with monetary compensation.

An interesting situation arises when an employee's vacation is postponed to the next year. For example, due to objective necessity, the employee was withdrawn from the annual paid rest period. He still has vacation days. In this situation, next year his rest will exceed the standard 28 days. Even if he has no reason to receive extra days vacation. Theoretically, there is a situation in which an employee can replace part of the rest with monetary compensation. However, in practice, things are different.

The legislator in Art. 126 of the Labor Code of the Russian Federation paid attention to this point. If the vacation was postponed to any working year, then employees have the right to choose monetary compensation for the part that exceeds 28 calendar days.

Let us illustrate this situation with an example.

Accountant Semicheva L.B. has a disability . The length of her annual leave is 30 calendar days ... 6 days of rest by Semicheva L.B. was postponed to 2019. since 2019. Thus, the total duration of the vacation is 36 days (one part - 30 days, the second part - 6 days). The employee will legally receive a cash refund for 2 days, that is, for the first installment that exceeds 28 days.

The procedure for replacing vacation with monetary compensation

The replacement process is regulated labor legislation... For a legitimate procedure, you need to go through the following stages:

statement;
order;
entry into the employee's personal card;
converting to a vacation schedule.

Employee statement

The process of replacing leave with compensation is initiated by the employee. It is with his written consent that the employer can carry out the relevant operations. The employee expresses his will in writing by filling out an application. The legislator does not define any strict form of this appeal.

It is necessary to draw up the "header" of the application, put the date and personal signature. This appeal is forwarded to the employer. An entry about him is made in the register of applications. He puts forward his resolution.

But before that, it is necessary to check whether there are grounds for replacing the rest time with compensation. In the absence of such reasons, the employer has the right to reject the employee's appeal. The latter's statements are not an unconditional reason for the payment of a monetary reward for unused vacations... If there is no reason to increase the vacation, the replacement is considered illegal.

Order

After the employer has concluded that it is possible to replace the share of rest with monetary compensation and signed the employee's statement, he issues an order. It is this document that formalizes all the key actions.

The order to replace the leave must contain the following information:

Date of issue and number.
Link to the relevant article of the Labor Code.
The name of the employee, his personnel number, position and the specific place of work in which he performs his labor function.
Vacation days replaced by compensation.
The reason for issuing the order is the employee's appeal (date, registration number).
Full name of the head who issued the order.

The employee must be notified of the order against signature.

In a special box, he indicates the date and puts his signature. Information about the order must be entered in special magazine registration, which is kept for five years.

Entry into personal card and vacation schedule

The testament to the replacement procedure is the introduction of information into the employee's personal data, as well as changes to the vacation schedule. The implementation of each sequential action is the guarantor of the legality of the entire procedure as a whole. So, it is a unified form T-2. Various information concerning a particular employee is entered into it.

The card also contains data on vacations (section 8):

for what period is provided;
number of days;
the moment of the beginning and the end;
basis for granting days of rest.

In case of replacement, the card is issued as follows:

period - the working period for which the vacation is presented;
number of days - the period to be replaced by compensation;
start date - indicate "vacation replacement";
end date - indicate “cash compensation”;
basis - order (number, date).

It is imperative to make transformations in the vacation schedule. The required information should be reflected in column 10 "Note".

The employer or authorized employee must make a note that part of the annual leave (indicates a specific duration) has been replaced with a monetary amount. You should also make a reference to the basis - an order with a date and number.

Calculation of the amount

The calculation of the amount of compensation is made according to the standards that are valid when determining the average earnings for the vacation period. This indicator is established in Article 139 of the Labor Code of the Russian Federation. Average earnings per day is calculated for the previous 12 months. Assessed wage for this period is divided first by 12 (the number of months), and then by 29.4 (the average monthly size of working days).

Calculation example: lawyer Popov S.Yu. for the regime of irregular working hours is entitled to additional days of rest, which are summed up with annual paid leave. So, in 2019, the total duration of the rest will be 31 days. Popov S.Yu. has the right to replace 3 days of vacation with monetary compensation. From 01.11.14g. until 01.11.15 he was paid for the performance of labor functions in the amount of 300 thousand rubles.