How you can break up your vacation according to the labor code: reaching an agreement. Dividing vacation into parts How vacation is divided according to the labor code

). The vacation period specified in the Labor Code of the Russian Federation is minimal, that is, the employer has the right, by a collective agreement or local regulation, to establish a longer duration of vacation for its employees or additional days for vacation (Article 120 of the Labor Code of the Russian Federation).

Dividing vacation into parts according to the Labor Code of the Russian Federation is possible by agreement between the employee and the employer under one condition: one of the parts of the vacation must be at least 14 calendar days (Article 125 of the Labor Code of the Russian Federation). It turns out that the other part of the vacation, in addition to the indicated 2 weeks, can be divided into parts as desired. For example, an employee can take a couple more vacations of a week each. And even for one day, leave can also be issued; the Labor Code does not prohibit this. Although it is not recommended to split vacation too much, since in a short period of time the employee is unlikely to be able to fully rest.

In turn, the employer cannot in any way limit the splitting of an employee’s leave or set a minimum duration of leave.

The employer also needs to take into account that if the employee first took his short vacations during the working year and his last vacation is 14 calendar days, this last vacation cannot be taken away. Since in this case the requirement of Art. 125 Labor Code of the Russian Federation.

Registration of division of vacation into parts

As stated above, the issue of dividing vacation into parts must be agreed upon between the employee and the employer. And of course, such agreement should ideally be recorded on paper. The most reliable option would be if the employee himself writes an application addressed to the head of the organization about dividing the annual paid leave into parts.

However, if there are many employees in the organization, this may be inconvenient. Therefore, there is another way: to familiarize employees with the vacation schedule, which in itself already fixes the division of vacation (Article 123 of the Labor Code of the Russian Federation).

If the employee does not want to share the vacation

Not every employer today is ready to let their employees go on vacation for all 28 calendar days at a time. So should he do this or shouldn’t he if the employee does not agree to split his vacation into parts? In the absence of the employee’s consent, the employer has no legal grounds to unilaterally decide to divide the employee’s vacation into parts (Letter of Rostrud dated July 17, 2009 N 2143-6-1). This means that the employee will need to be sent on vacation for all 4 weeks, of course, provided that he has not previously used his annual paid leave for the current working year.

By the way, for violations of labor legislation, administrative liability is provided in the form of a warning or a fine in the amount (Part 1 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation):

from 1000 to 5000 rub. to the manager;
from 30,000 to 50,000 rub. to the organization;
from 1000 to 5000 rub. on IP.

Is it possible to force workers to share the other 14 days of vacation?

Due to operational needs, some employers find it difficult to let their employees go on vacation not only for 28 calendar days, but even for 14 days. More precisely, they are ready to do this once a year, because the corresponding requirement is directly enshrined in the Labor Code of the Russian Federation, but the second time - no longer. In this regard, sometimes organizations try to force employees to take vacations for shorter periods using various kinds of tricks. For example, they prescribe the corresponding condition on the mandatory division of the second 14 calendar days in the local regulatory act (LNA) of the organization.

However, LNA norms that worsen the employee’s position in comparison with established labor legislation are not subject to application (Article 8 of the Labor Code of the Russian Federation). The considered requirements for mandatory division of vacation contradict the provisions of Art. 125 Labor Code of the Russian Federation. Therefore, their employees, in general, can simply ignore them. And in the event of a conflict with management, inspectors from the labor inspectorate will also point out the illegality of the LNA norms.

Vacation by working days and weekends

Thanks to the possibility of splitting holidays into parts, employees use their holidays differently. The Labor Code of the Russian Federation does not regulate the issue of how an employee’s application for leave should be drawn up - only for working days, for working days and weekends, only for weekends. To understand each case, let's look at all 3 options using examples.

Situation 1. The employee wrote an application for leave for a full week - from June 20 to June 26, 2016. This period includes both weekdays and weekends. If the employer does not mind, then the employee must be given and paid leave for all 7 calendar days. This is perhaps the simplest situation that does not raise any questions.

Situation 2. The employee wrote an application for leave from June 20 to June 24 - 5 calendar days, which according to the calendar are working days. Formally, the employee has the right to do so. And it is impossible to force him to write a statement for the whole week with the “capture” of weekends. Then vacation pay should be paid to him specifically for these 5 days, and June 25 and 26 will be regular days off for the employee.

An employee, having thus divided his second 14 days of vacation, can, in a certain sense, increase his vacation, although only by 4 days (for 2 pairs of days off). But in any case, he will be paid vacation pay only for 28 calendar days during the working year.

Situation 3. The employee wrote an application for leave from June 25 to June 26 - 2 calendar days off. This option is not the most profitable for the employee. However, such a situation is also possible. Then he will need to be provided and paid for 2 days of vacation.

Let us note that if an employee once took such a short weekend leave for some reason, this is unlikely to cause complaints from the inspectors. But inspectors will probably look at permanent holidays on weekends with suspicion.

If the employee takes vacation only on weekends

There is such a practice in Russian organizations - to provide employees with 2 days of leave, which must fall on weekends. That is, once a year, an employee, as expected, takes a vacation for 2 weeks. And the remaining 14 days are used, for example, 2 days (Saturday and Sunday) for 7 weeks.

After all, if you literally read the norms of the Labor Code, then the division of leave into parts can be organized in any way, as long as both the employee and the employer agree with it. And weekends are included in the vacation granted in calendar days. And vacation can also begin on a day off.

And yet, leave cannot be granted in this way. Because the employee does not actually use his vacation: weekends, even without writing a vacation application, would be non-working days for him, that is, they would be rest time for him. And in accordance with the Labor Code of the Russian Federation, the types of rest time are (Article 107 of the Labor Code of the Russian Federation):

breaks during the working day (shift);
daily (between shifts) rest;
weekend;
non-working holidays;
vacation.

That is, along with days off, the employee must also have vacation. In addition, this kind of vacation for 2 days will look extremely strange in the vacation schedule, which is drawn up a year in advance (Article 123 of the Labor Code of the Russian Federation).

Is it possible to share annual additional leave?

If an employee is entitled to additional leave, then his annual paid leave consists of the main and. That is, it will definitely be more than 28 calendar days (Article 115 of the Labor Code of the Russian Federation). It is the annual paid leave (which includes additional) that can be divided into parts according to the Labor Code (Article 125 of the Labor Code of the Russian Federation). So you can cut into pieces not only the main one, but also an additional one.

This is also indirectly confirmed by the fact that instead of additional leave (or part thereof) provided in excess of 28 calendar days per year, it can be paid (Article 127 of the Labor Code of the Russian Federation). In this case, the employee does not use part of the rest time allotted to him at all, and in return receives a cash payment.

Each employee has the right to annual paid leave of at least 28 calendar days (Article 155 of the Labor Code). The head of the enterprise can increase this period by fixing the changes in a collective agreement or internal regulations (Article 120 of the Labor Code), while any reduction in the minimum duration of rest will be unlawful.

The legislation also provides for the possibility of using the vacation period not immediately, but in parts, at different times of the year. How vacation can be divided according to the Labor Code depends solely on the wishes of the employee. The need for this may arise on the initiative of:

An employee who, due to family circumstances or for other reasons, wishes to take part of the vacation at a certain time.
A manager who is experiencing a constant shortage of employees or needs to mobilize them to resolve a difficult production situation.

The manager does not have the right to interfere with the employee’s desire to share vacation at his own discretion, while the same actions on the part of the management themselves require the obligatory consent of the employee.

How many parts can a vacation be divided into?

When dividing vacation, you cannot violate the rule established by Art. 125 of the Labor Code and corresponding to the requirements of the International Labor Organization Convention No. 132 of September 6, 2011. Specifically, the duration of at least one part of it should not be less than 14 calendar days. Whether it is possible to divide vacation by day is not determined by the Labor Code. Theoretically, the second half of the vacation can be divided into arbitrarily small periods, even consisting of one day.

These actions will not contradict the law, although they will certainly meet some resistance from management. In addition, calculating benefits for too short a period of rest is also somewhat more difficult. For the employee himself, going on vacation for such short intervals cannot be considered as receiving proper rest.

When planning to divide his vacation into parts, the employee must clearly know how many days of vacation he is entitled to this year, and how he can break down his vacation. After all, perhaps he has been working for less than a year, and his vacation will be less than 28 days. Or he has special privileges and a longer vacation, or maybe the employee has vacation left over from the previous period. Find out how to calculate the number of vacation days in each specific case.

Rest on weekdays

There are different ways in which vacation can be divided according to the Labor Code. It can be divided into parts that include both working days and weekends. However, the employee has the right to apply for rest within five working days. Taking into account the previous and subsequent days off, he thereby extends his vacation by four days.

In fact, the employee rests for nine days, of which five are paid - included in the vacation. By applying this splitting system to the entire fourteen-day period allowed for splitting, the employee can increase the total duration of leave by ten days. Of course, vacation pay will be accrued only for 28 calendar days.

Vacation only on weekends

It makes no sense for an employee to take a vacation on weekends, since he would have rested on these days without it. Nevertheless, such situations are beneficial for the employer, which is why they occur in enterprises. In other words, the employee is provided with mandatory 14 days of undivided vacation, after which the remainder is distributed on Saturdays and Sundays - resulting in seven segments of two days.

Thus, the employer has a full staff of employees who practically do not go on vacation. The only difference is that wages are accrued for days off that fall during vacation periods. From a formal point of view, such a division of annual paid leave into parts does not violate the norms of the Labor Code, but is still illegal even with the voluntary consent of the employee. Since the employee has the right to a vacation of 28 days (Article 21 of the Labor Code; Part 5 of Article 37 of the Constitution), which will not be implemented under the described scheme. Its constant use may provoke an inspection by the Labor Inspectorate and the imposition of penalties.

It is worth noting: Employees often plan activities during their vacation that can only be done on a weekday (for example, going to the dentist). If the employer does not agree to provide the employee with leave on weekdays and insists on rest only on weekends, then the employee can write an application for time off with the wording “” and indicating a valid reason for his future absence.

Splitting additional leave

Additional leave is provided for work in difficult and harmful working conditions and, in combination with the main one, exceeds the required 28 days (Article 115 of the Labor Code). Read the article about providing additional leave for hazardous working conditions in 2020. It can also be divided into smaller segments, although this is not directly stated in the legislation. An indirect solution to this can be considered the possibility of replacing additional leave with monetary compensation (Article 127 of the Labor Code).

Review from vacation

Calling an employee to work before the end of vacation in case of production necessity is possible only with his consent (Part 2 of Article 125 of the Labor Code). He can use the remaining part of the vacation at any time of the year at his own choice or add it to the next vacation, which decision is reflected in the issued order. An employee’s refusal to comply with the demands of his superiors cannot be equated to a violation of labor discipline (clause 37 of the Post. Plenum of the Supreme Court No. 2 of March 17, 2004). Find out in what cases an employee can be recalled from vacation.

If an employee has already used 14 days of rest, dividing them into parts, it is unlawful to recall him from the remaining half of the vacation. Also, even with consent, it is prohibited to interrupt employees’ rest:

under 18 years of age;
pregnant women;
working in difficult and dangerous conditions.

Decor

The division of vacation according to the Labor Code is based on:

Payment for parts of vacation

Vacation pay is calculated depending on the employee’s application. If it is written from Monday to Sunday, then the employer will pay vacation pay for 7 days. When the application is written from Monday to Friday, the employee will receive vacation pay only for these days, but will actually rest for the same seven days. If the application is written for Saturday-Sunday, then the employee will receive vacation pay for two days off, which he would have taken off in any case.

Vacation schedule for the next year, which includes the dates of all components of the vacation. This document is presented to employees for review and approval, the fact of which is confirmed by their signatures.
Written statement from the employee. This option is advisable in companies with a small staff, as well as in the case of division of vacation after.

The second option requires some additional steps:

The director's decision is indicated in the corner of the application.
An order on the division of leave is issued (form T-6), certified by the signature of the manager and the seal of the organization. The information contained in it is identical to that specified in the application.
The accountant fills out a calculation note (form T-60) to calculate vacation pay.
Information regarding leave is entered into the employee’s personal card.
The data in the time sheet that takes into account work time is subject to change.
New dates are noted in the vacation schedule, and the reason and date of changes are entered in the vacation transfer column.

Statement

The vacation breakdown application must contain:

name and address of the organization;
Full name of the applicant;
the essence of the request, preferably with an explanation of the reasons, which will increase the likelihood of a positive decision;
desired dates for going on vacation and its completion;
date of application;
employee signature.

Responsibility for violations

Whether the employer has the right to divide vacation without the employee’s consent is determined by Letter of Rostrud No. 2143-6-1 dated July 17, 2009. This action will be unlawful, as will the decision to split the vacation, determine the duration of its parts and the period for which they will fall. The same applies to the publication of internal regulations prescribing such a division (Article 8 of the Labor Code). Therefore, the manager needs to act by persuasion, describing the unfavorable situation in the enterprise.

If an employee does not agree to split the vacation or go to work before it ends, he has the right to ignore the order of his superiors. If negative consequences arise, you must contact the Labor Inspectorate. Any coercion in such a situation will be recognized as an administrative offense classified as part 1 of Art. 5.27 Code of Administrative Offences. For committing it, a warning or penalties are imposed in the amount of:

1000–5000 rub. for a director or individual entrepreneur.
30000-50000 rub. for the enterprise.

We are ready to answer any questions you may have - ask in the comments

Question: The internal labor regulations establish the duration of the annual additional paid leave for employees with irregular working hours at 7 calendar days. The employee uses annual basic paid leave and annual additional paid leave separately. Is it legal to divide the specified annual additional paid leave into parts?

Answer: Dividing the annual additional paid leave of 7 calendar days into parts if the employee separately uses the annual main paid leave and the annual additional paid leave is illegal.

Rationale: In accordance with Part 1 of Article 114 of the Labor Code of the Russian Federation, employees are granted annual leave while maintaining their place of work (position) and average earnings.

Part 1 of Article 115 of the Labor Code of the Russian Federation establishes a general rule according to which annual basic paid leave is provided to employees for a duration of 28 calendar days.

By virtue of Part 1 of Article 116 of the Labor Code of the Russian Federation, annual additional paid leave is provided to employees engaged in work with harmful and (or) dangerous working conditions, employees with a special nature of work, employees with irregular working hours, employees working in the Far North and equivalent areas, as well as in other cases provided for by the Labor Code of the Russian Federation and other federal laws.

Based on Part 1 of Article 119 of the Labor Code of the Russian Federation, employees with irregular working hours are granted additional annual paid leave, the duration of which is determined by a collective agreement or internal labor regulations and which cannot be less than three calendar days.

As part 1 of Article 120 of the Labor Code of the Russian Federation provides, the duration of the annual main and additional paid leaves of employees is calculated in calendar days and is not limited to a maximum limit. Non-working holidays falling during the period of annual main or annual additional paid leave are not included in the number of calendar days of leave.

According to Part 2 of this article, when calculating the total duration of annual paid leave, additional paid leaves are summed up with the annual main paid leave.

At the same time, the Labor Code of the Russian Federation does not contain a ban on the separate use of annual basic paid leave and annual additional paid leave.

By virtue of Part 1 of Article 125 of the Labor Code of the Russian Federation, by agreement between the employee and the employer, annual paid leave can be divided into parts. Moreover, at least one part of this leave must be at least 14 calendar days.

In our opinion, from the content of this part it follows that its provisions apply to both annual basic paid leave and annual additional paid leave, including in cases where they are used separately.

In these cases, the provisions of Part 1 of Article 125 of the Labor Code of the Russian Federation, in our opinion, should also be applied separately to each of the annual paid leaves.

It should be noted that there are no clarifications on this issue in the legal literature, and judicial practice has also not been formed.

Annual additional paid leave of 7 calendar days cannot be divided into parts, one of which will be at least 14 calendar days.

Accordingly, its division into parts contradicts the provisions of Part 1 of Article 125 of the Labor Code of the Russian Federation.

The Labor Code of the Russian Federation does not establish exceptions to the rule provided for in this part.

Few people like to relax for the entire required vacation period at once. And not every employer is ready to agree to such a long vacation. Therefore in question division of vacation into parts of the Labor Code of the Russian Federation– the main guideline. It helps balance the interests of the employee and the employer.

Rules for splitting rest

The annual paid rest of any employee cannot be less than 28 calendar days (Article 115 of the Labor Code of the Russian Federation). Intracompany orders are illegal if they establish the opposite. They can increase the duration of vacation, but not reduce it. Regulates division of vacation into parts - Labor Code of the Russian Federation.

Long rest allows the employee to rest, recover, and gain strength. The duration of leave may be increased by federal or internal regulations. Keep in mind: the latter cannot reduce the minimum number of vacation days, even if they are signed by the employee himself.

Vacation splitting can occur at the initiative of an employee or manager. At the same time, the employee does not need to obtain consent from the employer. And here division of vacation into parts proposed by the director must be with the permission of the employee.

Thus, internal regulations cannot determine the minimum number of vacation days. In addition, the employee chooses for himself how many parts to split the 14 days of his vacation.

Coordination of division of annual holidays

In order not to violate the rights of an employee, the employer must agree division of annual leave with his subordinate. The result of negotiations should be reflected in writing. This can be done in two ways (see table).

№	Way	Who is it convenient for?
1	The employee submits an application to the employer about the desire to divide the vacation into several parts.	This option is used in organizations with a small number of employees. It is the most reliable and logical.
2	Draw up a vacation schedule containing data on the division of employee vacations and provide it for review by employees. They put their signatures in a special column of this document, expressing their agreement with the specified conditions.	This method is used by organizations with a large number of employees.

When vacation falls only on weekends

Russian enterprises practice the use of short vacations by their employees that coincide with weekends. So, the employee takes the first part of the main rest off continuously - for at least 14 days, and splits the rest into 7 parts of 2 days each, falling on weekends.

How will splitting the vacation into parts affect the amount of vacation pay?

The total minimum duration of annual leave is 28 calendar days (Article 115 of the Labor Code). By agreement between the employee and the employer, annual paid leave can be divided into parts, one of which must be at least 14 calendar days (Part 1 of Article 125 of the Labor Code of the Russian Federation). Please note that the number of parts into which the vacation can be divided, if one of them is 14 days or more, is not limited. “Splitting” vacation (taking into account weekends or taking into account only working days) may affect the total amount of accruals in favor of the employee.

In practice, not every employer can allow its employees to go on vacation for 28 calendar days at once, and accountants, as a rule, “split” vacation into 2 weeks. Let us show with an example whether it is profitable or not to “split” your vacation into parts.

EXAMPLE.

Nezabudkina V.I. works as an accountant on a five-day workweek schedule with a salary of 50,000 rubles.

Let’s determine how it would be more profitable for an employee to take a vacation:

Let’s assume that the period from July to June 2019 was fully worked out and no bonuses were awarded to the accountant.

Option one.

The billing period will be from July 2018 to June 2019. According to the condition, it has been fully worked out. The amount of payments included in the calculation is RUB 600,000. (RUB 50,000 x 12 months).

The average daily earnings will be 1,706.48 rubles. (RUB 600,000: 12 months: 29.3 days).

The amount of vacation pay will be 47,781.44 rubles. (RUB 1,706.48 x 28 days).

In July 2019, Nezabudkina V.I. must work 3 working days, for this period she will be credited with 6,521.74 rubles. (RUB 50,000: 23 days x 3 days). The total amount of accruals for June will be equal to RUB 54,303.18. (RUB 47,781.44 + RUB 6,521.74). The amount of accruals for July and August (subject to fully worked August) is RUB 104,303.18. (RUB 54,303.18 + RUB 50,000).

Option two.

Nezabudkina V.I. will divide the vacation into parts: 14 calendar days from July 1, 2019 and 14 calendar days from August 12, 2019.

For the first vacation, the billing period and, accordingly, the average daily earnings will be the same as in the first option. The amount of vacation pay will be 23,890.72 rubles. (RUB 1,706.48 x 14 days). In July, another 13 working days must be worked. The amount of accrued wages for this period is RUB 28,260.87. (RUB 50,000: 23 days x 13 days). The total amount of accruals for July is RUB 52,151.59. (RUB 23,890.72 + RUB 28,260.87).

Let's calculate the second part of the vacation. For her, the billing period will be from August 2018 to July 2019. In this case, the billing period has not been fully worked out, since Nezabudkina V.I. I was on vacation for 14 calendar days in July.

Let's calculate the number of calendar days worked in July, we get 16.07 days. . The total number of calendar days in the worked period will be equal to 338.37 days. (29.3 days x 11 months + 16.07 days).

The amount of payments included in the calculation is RUB 578,260.87. (RUB 50,000 x 11 months + RUB 28,260.87). Average daily earnings - 1,708.96 rubles. (RUB 578,260.87: 338.37 days). The amount of vacation pay for 14 days of vacation in August is 23,925.44 rubles. (RUB 1,708.96 x 14 days). For the remaining 12 days worked in August, Nezabudkina V.I. must accrue 27,272.73 rubles. (RUB 50,000: 22 days x 12 days). The total amount of accruals in August is 51,198.17 (RUB 23,925.44 + RUB 27,272.73).

A total of RUB 103,349.76 will be credited for July and August 2019. (RUB 52,151.59 + RUB 51,198.17).

The example shows that dividing vacation into parts does not greatly affect the amount of accruals in favor of employees. The difference in the total total income was due to the fact that vacation was used in months with different numbers of working days (in July 2019 - 23 working days and in August 2019 - 22 working days). If you use at least part of the vacation in the month with the largest number of working days, the amount of accruals will increase.

Let us remind you that the employee has the right to divide the vacation into any parts if one of them is at least 14 calendar days. This is confirmed, in particular, by specialists from Rostrud of the Russian Federation (letter dated July 17, 2009 No. 2143-6-1).

Let us note one more nuance. An employer cannot force an employee to include weekends in the vacation period. That is, if an employee wants to use vacation for 5 days from Monday to Friday, then the employer cannot prohibit this. This means that if an employee works on a five-day workweek schedule, and in the case when he takes vacation for 7 calendar days from Monday to Sunday, and for five calendar days from Monday to Friday, he will not be at work for the entire weeks (since Saturday and Sunday are in any case days off according to the work schedule).

It turns out that the employee will still rest for 2 weeks. However, when taking a vacation of seven calendar days, he will be paid for Saturday and Sunday, while if he takes a vacation for 5 days, then only 5 days will be paid, and Saturday and Sunday will not be paid.

Therefore, in the first case, the amount of vacation pay will be greater.

At the same time, in the second option for registering leave, the employee will have two more vacation days, which he can use later and compensate with the vacation pay received.

And if the billing period for these 2 days turns out to be “rich” in accruals included in the average earnings for calculating vacation, then the employee will benefit. The employee has the right to use the short-term vacation of two days on any days by agreement with the employer (for example, on Thursday and Friday, or can take vacation on Saturday and Sunday).

Drawing conclusions

Let us summarize the general results that employees probably know based on the explanations of accountants. It is advisable to choose months with the largest number of working days for vacation; in 2019, these will be July and October (23 working days each according to a five-day working week) or April, August and December (22 working days according to a five-day working week). It is not profitable for an employee to take vacation in January 2019 (17 working days) and in May (18 working days).

Regarding the splitting of the holiday into parts, we note the following.

In general, “splitting” vacation into parts does not significantly affect the amount of accruals, except for cases when the second part of vacation is used after an increase in wages or the payment of a large production bonus.

For those employees for whom a larger number of days is important, you can take vacation only for working days without days off. In this case, the employee will accumulate additional vacation days.

And vice versa. Workers who need more money can take vacation only on weekends.