Provide without pay. Vacation at your own expense: maximum period

Maybe not everyone, but many employers (and, to a greater extent, HR employees) due to the nature of their activities are faced with the topic of vacations, which employees ask to provide at their own expense. There may be various reasons for this. Let's consider the question of how to arrange everything correctly in compliance with the requirements of the law.

This concept hides a completely familiar vacation marked “at your own expense.” The right to receive it is enshrined in the Labor Code of the Russian Federation (Article 128). As a rule, we are talking about leave that is granted to an employee at his personal request. But there are cases in which this issue lies within the direct responsibilities of the employer.

Provision is mandatory

All categories and groups of employees who are provided with mandatory administrative leave without pay are defined in part two of Article of the Labor Code mentioned above. This is the following contingent:

• pensioners continuing to work;
• participants in the war (Great Patriotic War);
• disabled people;
• all employees in the event of marriage registration, death of a close relative or birth of a child;
• parents and legal spouses of military personnel who died due to injury, injury or concussion acquired during the performance of their duties in the service, died as a result of military action or as a result of an illness in any way related to their service.

In addition, the labor legislation of the Russian Federation provides for several more cases when administrative leave without pay must be provided without fail. Thus, according to the Labor Code of the Russian Federation, this requirement applies to employees entering or undergoing training in institutions of higher (Part 2 of Article 173) or secondary (Part 2 of Article 174) vocational education.

In addition, if an employee is hired on a part-time basis, and the duration of his vacation (paid) is less than that at his main place of work, then the organization is obliged to provide, upon application, the missing days, but no longer paid. This issue is settled in the second part of Article 286 of the labor legislation.

Do not forget that at the moment the Labor Code of the Russian Federation does not define the reasons and grounds that give the right to refuse to grant the specified categories of employees leave without pay. The position on the issue is clear and precise.

Leave without pay by agreement of the parties

Life circumstances can be different, and no one is immune from unforeseen difficulties. In this case, you can take the necessary days by applying for unpaid leave. The duration is determined strictly in agreement with the authorities; this issue is regulated by Art. 128 (part 1) of the Labor Code. When considering an application, attention is paid to the specific reasons and circumstances that caused the need for leave. Having examined the practice of labor disputes and current legislation, we can note several grounds that are accepted as valid. For example, state exams (if a person receives a second higher education), a fire or other disaster, serious health conditions of close relatives, etc. Although administrative leave without pay, even in these situations, is not required to be given to an employee. The key to success is a good relationship with management.

Statement of reasons is a necessary requirement, although they relate to the privacy of the employee. At the same time, the information that the employer received is personal data about the employee, and their storage, processing and use are carried out in accordance with Federal Law No. 152-FZ of July 27, 2006 and the provisions of the head of the Labor Code of the Russian Federation No. 14.

Table “Duration of leave without pay”

The minimum and maximum period of administrative leave for family reasons is determined solely by agreement with the employer; the legislation does not introduce restrictions in this regard. On the issue of mandatory provision, one must be guided by federal laws. Information on the duration of compulsory leave without pay is presented in the table.

Is unpaid leave included in length of service?

The period when the employee took leave without pay is not included in the insurance period, which is taken into account when assigning pensions. This is explained by the fact that for this period of time the person did not work, therefore, did not receive wages, and no contributions were made to the Pension Fund.

Employee guarantees

Before sending an employee on leave without pay, it would be a good idea to find out some questions regarding his guarantees.

Is it possible to place an employee on administrative leave without fail?

The current labor legislation of the Russian Federation does not provide for such a solution. The whole issue is regulated within the framework of the Labor Code of the Russian Federation, Article 128. In practice, cases of unpaid leave at the initiative of the employer occur very often. This is usually associated with crisis phenomena in production (plants, factories). When orders are reduced, process optimization is required. It is not profitable to lay off employees, so you will have to pay them benefits, and in general, after some time the situation may change. The most optimal, but illegal way out is administrative leave. And to protect themselves, the employer, as a rule, asks employees to write applications for leave without pay voluntarily. Sometimes this suits both parties, in which case everything is completely legal. If the employee does not agree, it is impossible to take leave without pay.

Leave without pay is an unpaid leave granted to employees for good reasons (Article 76 of the Labor Code). Leave without pay is often called additional leave because it is provided in addition to annual paid leave. Such leaves are provided for various reasons and have different purposes. During unpaid leave, the employee retains his place of work (position). This means that during the vacation period he cannot be fired at the initiative of the administration (except in cases of complete liquidation of the organization) or transferred to another job. Leave without pay is usually divided into those that: a) the administration is obliged to provide at the request of the employee; b) are given at the discretion of the administration (i.e. the employee may be denied such leave). Recently, another type of leave has appeared: “forced leave” without pay due to the deterioration of the financial and economic situation of enterprises. All cases when, at the request of an employee, they are obliged to provide him with unpaid wages are listed in laws and other regulatory legal acts. At the same time, the maximum duration of such vacations is also indicated. Thus, at the request of the employee, she must provide unpaid leave: to women - to care for a child until he reaches the age of 3 years (Article 167 of the Labor Code). establishes that this leave can be used not only by the mother, but also by the child’s father, grandmother, grandfather or other relatives actually caring for the child. Moreover, part of the leave can be used by one relative, part by another, etc.; for women with two or more children under 12 years of age - up to 2 weeks per year. This leave is provided to women in agreement with the administration during the period when production conditions allow. It can coincide with annual leave or be used separately in full or in parts. Transferring this leave to the next year is not allowed. The procedure and conditions for granting this leave also apply to men raising children without a mother, as well as to guardians (trustees) of minors (Article 1721 of the Labor Code); it is provided to employees - Heroes of the Soviet Union, Heroes of the Russian Federation, full holders of the Order of Glory, Heroes of Socialist Labor and full holders of the Order of Labor Glory - for up to 3 weeks a year at a time convenient for them; employees admitted to entrance exams at higher and secondary specialized educational institutions - for 15 and 10 calendar days, respectively, as well as employees studying on the job at preparatory departments at higher educational institutions, for passing final exams - for 15 calendar days; for employees working in the Far North and equivalent areas - for the duration of travel to the place of use of vacation and back once every 2 years; employees who are old-age pensioners or disabled people of groups I and II - up to 2 months a year; war and labor veterans, veterans of military operations on the territory of other states, including disabled people - from 2 weeks to 1 month a year; employees in case of illness - for 3 days during the year. without pay for a period of up to 3 days per year is provided at the personal request of the employee without presenting medical documents certifying the fact of the disease; in other cases specified by law. Laws and other regulatory legal acts provide for a number of grounds when the administration may, but is not obligated to, provide unpaid leave at the request of an employee. For example, long-term leave without pay for a period of no more than 1 year can be granted to civil servants. Article 76 of the Labor Code states that short-term leave without pay can be granted to an employee at his request for family reasons and other valid reasons. Whether the reason is valid is decided by the administration. The duration of the vacation is also determined by agreement of the parties. Valid reasons are usually recognized: joining, funeral of close relatives, seeing off a son for military service, etc. Collective agreements often stipulate the reasons why employees are granted short-term vacations, and sometimes also determine the timing of such vacations. The collective agreement may establish a rule on the mandatory provision of leave without pay for family reasons at the request of the employee. The duration of such short-term vacations, which are discussed in Article 76 of the Labor Code, is not defined by regulation. It depends on the production's ability to do without this employee and on the reason why leave is needed. In all cases of granting leaves without pay, regardless of their purpose and duration, an order (instruction) on leave must be issued. By agreement between the employee and the administration, leave without pay can be subsequently worked out. The possibility of working off and its feasibility, based on production conditions and labor conditions, are determined by the administration. The work agreement and terms of work can be drawn up both upon granting leave and subsequently. While on leave without pay, he can interrupt it at any time and return to work, notifying the administration about this. Recently, it has become a common occurrence that organizations suspend their work for quite a long period of time due to lack of funds and material resources, and the administration is forced to send workers on unpaid leave in order to prevent mass layoffs and save. The initiative to provide such leaves comes from the administration, and not from the employees. In such situations, employees are faced with a choice: either dismissal due to the liquidation of the organization, reduction in headcount or staff, or unpaid leave. Such “forced leaves” without pay are not provided for by labor legislation, and the procedure for their registration is not regulated by law. Therefore, in these cases it is necessary to be guided by the general rules and, in particular, Article 76 of the Labor Code, which provides that unpaid leave is granted upon the employee’s application. Therefore, before issuing an order to grant all employees or a group of employees unpaid leave, it is necessary to obtain an application from each of them requesting such leave, indicating its duration. Thus, the employee expresses his or her request for unpaid leave for a certain period. After all, according to the law, without the employee’s consent, he cannot be sent on leave without pay. In order to provide material support to employees on unpaid leave due to a forced temporary cessation of the organization’s work, they may be provided with compensation payments using funds from the State Employment Fund of the Russian Federation allocated by the employment authorities at the location of the organization on a non-refundable or repayable basis. Financial resources for compensation payments are allocated to organizations that are in a difficult financial and economic situation for objective reasons beyond the control of the administration, and are not provided to organizations that are duly declared insolvent or in respect of which a decision has been made to appoint external management or sanctions by an authorized body. The conditions for the provision and amounts of compensation payments are established by the Regulations on the procedure and conditions for the provision of compensation payments to employees on leave without pay due to the forced temporary cessation of work of organizations, approved. by order of the Federal Employment Service of the Russian Federation dated March 6, 1995 No. 44. Compensations are paid to employees who are on the staff of the organization and do not receive an old-age pension, including preferential pensions established by law. Compensation payments may be provided from the first day the employee is on forced leave without pay. The duration of the period for paying compensation to each employee is determined by the administration depending on the amount of funds allocated from the Employment Fund, but should not exceed 4 months (consecutive or in the sum of calendar months) during the calendar year. In districts and localities where regional coefficients for wages are established, compensation payments are calculated taking into account the regional coefficient. Compensation payments are not provided to employees employed in seasonal and temporary work, part-time workers, as well as persons working for citizens under agreements (contracts). From funds allocated to organizations on a non-refundable basis, compensation is paid in the amount of the minimum wage established by federal law. Employment authorities have the right to increase the amount of compensation payments to employees up to 3 times the minimum wage, subject to their participation in work organized by the executive bodies of state power (local government) of a given territory or the organization itself.

Dictionary of business terms. Akademik.ru. 2001.

For family reasons and other valid reasons, an employee, upon his written application, may be granted leave without pay, the duration of which is determined by agreement between the employee and the employer.

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 a 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, who died or died as a result of injury, concussion or injury received while performing the duties of military service (service), or due to an illness associated with military service (service) - up to 14 calendar days a 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.

Comments to Art. 128 Labor Code of the Russian Federation

1. The commented article indicates cases when an employer can provide an employee, at his request, with leave without pay, and cases when he is obliged to provide such leave.

2. Leave without pay is called additional, since it is provided in addition to annual paid leave. Such leaves are granted for various reasons and have different purposes.

3. Leave without pay is divided, according to the commented article, into 2 groups: those that the employer is obliged to provide at the request of the employee, and leaves that the employer can, but is not obliged to provide, i.e. such leaves are given at the discretion of the employer. Taking into account the interests of production, he also determines the possibility of granting leave on the grounds listed in the commented article at the time specified by the employee, as well as the duration of the leave provided.

4. During unpaid leave, the employee retains his place of work (position). Vacation time without pay in all cases is counted towards the employee’s total and continuous work experience.

The length of service that gives the right to annual basic paid leave includes vacation time without pay for up to 14 calendar days (Article 121 of the Labor Code).

The time of leave to care for a child before he reaches the age established by law is counted towards the length of service in his specialty, with the exception of cases of granting a pension on preferential terms (Article 256 of the Labor Code). This time is not included in the length of service giving the right to annual basic paid leave (Article 121 of the Labor Code).

5. The commented article does not provide for the possibility of sending an employee on leave without pay at the initiative of the employer.

6. If employees, through no fault of their own, are unable to perform their job duties (i.e. downtime due to the fault of the employer), then the employer is obliged to pay them for all downtime not less than that provided for in Art. 157 TK amount.

7. The employer is obliged, on the basis of a written application from the employee, to provide leave without pay on the basis of Federal laws: dated March 2, 2007 N 25-FZ “On Municipal Service in the Russian Federation”; dated May 18, 2005 N 51-FZ “On elections of deputies of the State Duma of the Federal Assembly of the Russian Federation”; dated January 10, 2003 N 19-FZ “On the elections of the President of the Russian Federation”; dated July 21, 1997 N 114-FZ “On service in the customs authorities of the Russian Federation”; dated January 9, 1997 N 5-FZ "On the provision of social guarantees to Heroes of Socialist Labor and full holders of the Order of Labor Glory"; dated November 26, 1996 N 138-FZ “On ensuring the constitutional rights of citizens of the Russian Federation to elect and be elected to local government bodies”; dated August 22, 1996 N 125-FZ "On higher and postgraduate professional education"; dated January 12, 1995 N 5-FZ “On Veterans”; Law of the Russian Federation of January 15, 1993 N 4301-1 "On the status of Heroes of the Soviet Union, Heroes of the Russian Federation and full holders of the Order of Glory."

8. The employer is obliged to provide leave without pay to employees on the basis of Art. 173 TK:

employees admitted to entrance examinations in educational institutions of higher professional education - 15 calendar days;

employees - students of preparatory departments of educational institutions of higher professional education for passing final exams - 15 calendar days;

for employees studying in state-accredited educational institutions of higher professional education on a full-time basis, combining study with work, for passing intermediate certification - 15 calendar days per academic year, for preparing and defending a final qualifying thesis and passing final state exams - 4 months. , for passing final state exams - 1 month.

According to the labor legislation of the Russian Federation, leave without pay is referred to as “leave without pay.” It is usually provided to the employee on the basis of his written application, and its duration directly depends on the agreement reached with the employer.

Employer Responsibilities

The employer's responsibilities include providing unpaid leave to certain preferential categories of employees. For example, working pensioners, as well as the closest relatives of fallen military personnel, will be able to count on two weeks of additional rest. For working disabled people, leave without pay is provided for 60 calendar days.

All other employees must agree on all details with the employer, who has every right to refuse their written application. The time frame for leave at your own expense may be additionally stipulated in the collective agreement. In the field of education, a teacher has the right to a year's leave without pay if he has 10 years of work experience. In other directions, everything will depend only on the consent of the administration.

Under extenuating family circumstances, which usually include the birth of a child, marriage registration or the death of a close relative, each employee has the right to count on 5 days of unpaid leave.

How to take leave without pay

Even if the employer agreed to provide additional leave, it will definitely not be included in the total length of service. The only exception is the first 14 calendar days. According to the Russian Labor Code, an employee must notify his superiors in writing two weeks in advance of the need for additional leave. This rule also applies to those employees whom the employer does not have the right to refuse, otherwise even one missed day will be considered absenteeism.

Leave without pay is always the initiative of the employee himself. If the employer directly sends you on such leave, this can be regarded as a serious violation of the Labor Code. However, it should be remembered that such “vacations” will certainly delay the time frame for mandatory paid leave. Lawyers usually advise resorting to such a procedure only in cases of extreme necessity, especially since indicating the reason in a written statement is a prerequisite.

There are a huge number of cases of providing days off without pay. It is simply impossible to list them due to their diversity.

This is explained by the fact that the reasons for the need for such rest, as a rule, are family circumstances, be it the illness of a relative, the urgent departure of the employee himself, the need to visit one or another organization whose opening hours coincide with the working hours of the worker, etc. In any case, the validity of such reasons is assessed by the employer in each specific case.

Who has the right to “forced rest”? Everyone, without exception, has the right to leave without pay at the initiative of the employee.. However, it should be borne in mind that it can be divided into two types:

1. Leave that is granted at the discretion of the employer.
2. Leave that the employer is obliged to provide.

The latter is clearly regulated by Article 128 of the Labor Code of the Russian Federation. The categories of persons, according to this article, and the duration of such leave can be presented in table form:

The above list is not exhaustive. indicates the presence of other cases established by law or collective agreement in which the provision of days off without pay is mandatory.

For clarity, we provide an additional list of categories of citizens to whom the employer is obliged to provide leave at his own expense, indicating its duration and basis:

Reference! Federal laws and collective agreements may establish additional grounds for mandatory unpaid leave.

How many days can I take?

The period for which the employee wishes to leave at his own expense is determined in each specific case by agreement with the employer. However, one should not forget that the law may establish a maximum period of stay on such vacation.

How many times a year is this opportunity offered?

Employees, as a rule, are interested in the question of how many days a year can they take? Since this kind of vacation is a necessity caused by personal or family circumstances, it is impossible to plan for their occurrence. Therefore, it is assumed that such vacations can be taken countless times, because it is simply impossible to schedule them.

However, do not forget that a certain limit must be observed (if it is established by law). That is, the allotted leave can be used either once or divided into parts - but within the limit established by law (for example, within a year) and period (for example, up to 14 calendar days).

What is included in this period?

Do public holidays count as vacation? As a general rule, unpaid leave is calculated in calendar days, which means that it includes both weekends and holidays. Its extension without pay, as well as its provision, is the prerogative of the employer, with the exception of cases where the employee took fewer days than he is allowed by law or a collective agreement.

In the latter case, the employee certainly has the right to extend his vacation up to the limit established by law.

Attention! If the employee went on vacation at his own expense solely by agreement with the employer, then an extension of such vacation will have to be negotiated.

The upper and lower limits of vacation at your own expense can be established by law or local legal act. In Russian legislation, it varies from five days to a year, depending on the categories of citizens and the circumstances that necessitated the provision of such leave.

In other cases setting rest limits is left to the employer. In this case, everything depends on the production capabilities of the enterprise and agreements with management.

Can an employer call an employee?

The production process is often unpredictable and the possibility of letting an employee go today does not mean that such an opportunity will be available tomorrow.

That's why, the presence of employees at their workplaces does not always depend on the wishes of the employer, sometimes it can be caused by production needs.

Important! Recall from administrative leave without pay is not regulated by the labor legislation of the Russian Federation.

There is no special article about this in the Labor Code of the Russian Federation. It seems that it is not permissible if its provision is required by law.

But giving an analogy with annual paid leave, revocation still takes place if there is the consent of the employee, since in this case the agreement of the parties has been observed, which makes it possible to judge that there is no violation of the employee’s rights, and There is no direct prohibition on recall from this type of leave in the legislation of the Russian Federation.

As for vacation at your own expense only by agreement with the employer, then there will not be a recall, but an early termination of such vacation. In this case, the employee’s consent is not required, since the initial granting of leave was the employer’s permission, which means he has the right, at his own discretion, to change his decision and end such leave ahead of schedule.

Useful video

Next is an informational video on the topic “Who is given leave without pay and for how long?”:

Conclusion

Our life is unpredictable. No one is immune from the need to temporarily interrupt their work activity. In some cases, the law comes to help the employee by establishing the employer’s obligation to provide leave at his own expense. In other cases, employees have to rely only on the employer's leniency.

In any case, every employee has the right to leave without pay, the main thing is not to forget about the need to reach an agreement with the employer, otherwise, the exercise of such a right without the knowledge of management may be regarded as absenteeism, which will entail extremely negative consequences for the employee.

Also, you should not abuse this right, but exercise it only when necessary - this will allow you to establish yourself as a hardworking employee who wants to grow and develop.