Sick leave on vacation: how to extend, transfer and pay

Postponement or extension of leave due to illness

Presentation of sick leave before vacation is the basis for postponing the start of vacation days in accordance with paragraph. 1 tsp. 1 tbsp. 124 of the Labor Code of the Russian Federation, if the employee recovered by the time it began, but did not have time to receive vacation pay (Part 2 of this norm).

If an illness or injury occurs to an employee while he is on vacation, then he can exercise the right to extend or postpone it. The same scenario is expected if an employee falls ill and does not have time to recover before the start of the vacation.

Note! According to Part 1 of Art. 423 of the Labor Code of the Russian Federation, normative acts adopted back in the days of the USSR and in force on the territory of the modern Russian Federation can still be applied today to the extent that they do not contradict the Labor Code of the Russian Federation.

As stated in Part 1 of Art. 18 Rules on regular and additional leaves (hereinafter referred to as the Rules), approved. People's Commissariat of Labor of the USSR 04/30/1930 No. 169, if before the start of the vacation certain reasons appeared that prevent the employee from going there on time, then by agreement with the employer a new start date can be set. That is, we are talking about postponing a vacation that did not start on time, including due to the employee’s illness.

In the event that the sick leave was closed already during the annual paid leave, which was not transferred because this issue was not agreed upon by the parties, the employee can exercise the right given by Art. 124 of the Labor Code of the Russian Federation, to extend vacation by the number of days of temporary disability that coincided with vacation pay, or to transfer these remaining days to a new period.

How to calculate vacation pay if you were on sick leave?

Vacation pay is given to the employee only for the time allocated according to the schedule. If an employee takes unscheduled days off for family reasons, it will be leave at his own expense. The amount for each person is calculated individually. Various factors influence, for example, the number of days missed.

First, the income for the last year is calculated. This includes wages, additional payments, bonuses, bonuses. Sick leave, one-time financial assistance, vacation pay and compensation are not taken into account. The resulting number is divided by 12 according to the number of months in the year. Monthly income is divided by 29.3, which allows you to find out how much an employee earns per day.

The amount is also affected by how long the employee was sick. The daily salary must be multiplied by the number of vacation days. A working person may have days that are not taken into account, for example, sick leave, which will affect the final amount, because Time spent on treatment is not taken into account when calculating vacation pay.

Vacation pay is paid separately, and sick leave is paid separately.

Since the accounting department does not make insurance contributions, the amount of the benefit is not taken into account when calculating sick leave. Sick leave does not in any way affect the amount of vacation pay. If a certificate of incapacity for work was issued after calculations, then this is taken into account when recalculating sick leave.

Sick leave before scheduled vacation

The priority of granting leave is determined according to the schedule, which is mandatory for the employee and the employer (Article 123 of the Labor Code of the Russian Federation). If an employee falls ill and recovers before the start of the vacation, he can go on it according to a previously agreed schedule.

If the employer decides to change the schedule (for example, if the employee was sick and did not complete a certain amount of work), postponing the start date of the vacation to another date, then he must first coordinate this with the employee himself. If the notice is not sent in a timely manner, the employee will have the right, upon his written application, to demand from the employer to determine another date for the start of the vacation (Part 2 of Article 124 of the Labor Code of the Russian Federation).

The vacation schedule is mandatory for the parties to comply with, and therefore if an employee went on sick leave before the vacation and did not recover by the time it began, then:

• the employer can postpone the vacation to a new date, which he will have to agree with the employee;
• an employee can go on vacation after sick leave, notifying the employer immediately after recovery of his decision to extend the vacation, or transfer the days that coincided with the illness to another period.

Is it possible to take vacation while on sick leave?

Perhaps the employee, after the end of sick leave, will want to stay at home to improve his health, then he needs to write a leave application two weeks in advance. The main thing is that the employer approves the next vacation. However, it is worth considering that a company employee cannot receive 2 payments in one period - either vacation pay or sick leave, because such sick leave simply will not be reimbursed by the Social Insurance Fund. Therefore, going on vacation on days when the employee’s sick leave is open is simply impractical and it’s easier to postpone the vacation date.

So, the employee’s next vacation may coincide with temporary disability. The procedure for leaving and its duration are noted in labor legislation, according to which rest time will not be lost, it will be postponed or extended. The certificate of incapacity for work will be paid in full, even if vacation days were issued with subsequent dismissal.

Sick leave due to pregnancy before annual leave

A pregnant employee can take annual leave before or immediately after maternity leave in accordance with Art. 260 Labor Code of the Russian Federation. In addition, the husband of a maternity leave can also submit an application to his employer for annual leave during the period when his pregnant wife takes out maternity leave on the basis of the sick leave provided. And the employer does not have the right to refuse him in accordance with Part 4 of Art. 123 Labor Code of the Russian Federation.

This means that immediately after completing sick leave for pregnancy and childbirth (maternity leave), the employee will be able to freely apply for annual leave, even if she does not have the required length of service to go on it (Article 122 of the Labor Code of the Russian Federation), and regardless of whether how long it was scheduled for. This leave is issued at the request of the employee.

Are other types of leave due to sick leave transferred?

If an employee falls ill before going on other types of leave (study, child care, without pay) and the illness ends only while on vacation, then days of illness cannot serve as a basis for extending vacation days. After all, in Art. 124 of the Labor Code of the Russian Federation refers to the extension/transfer of only annual paid leave due to illness.

At the same time, if an employee planned to go on additional paid leave, then on sick days that coincided with vacation pay, it will be possible to extend it or postpone it to another date. After all, in Art. 124 of the Labor Code of the Russian Federation talks about the possibility of transferring/extending annual paid leave, and it can be basic (Article 115) and additional (Articles 116–119).

In addition, in Art. 17 of the Rules talks about the possibility of transferring/extending both regular and additional leave due to temporary disability.

If before the vacation the employee was on sick leave to care for another family member, then (in this case the overlap of sick days and vacation days) he does not have the right to extend or transfer vacation days. However, according to Art. 18 of the Rules, this circumstance may be recognized as preventing the employee from going on vacation on time, and then the issue of postponing it can be resolved by agreement of the parties.

Must an employee notify the employer of illness?

Some experts say that the law does not require immediate notification of the employer about temporary disability during the period of annual leave.
Other experts agree with this opinion, but believe that if such an obligation is established in a local regulatory act, then the employee’s failure to report an illness can be regarded as a violation of labor discipline with all the ensuing consequences. The Supreme Court, in Ruling No. 69-KG13-4 dated October 4, 2013, considered a situation where a woman was fired for absenteeism because she did not warn the employer about illness during her vacation, but extended it and started work later. The court of first instance refused to reinstate the employee, considering that she had abused the right to extend leave - violated the internal labor regulations, clause 4.8 of which included the main duties of employees including timely notification to management about the reasons for absence from work.

However, the Supreme Court of the Russian Federation considered these conclusions erroneous and indicated that failure to notify the employer of the availability of sick leave cannot serve as a basis for recognizing the reasons for absence as unjustified. The employer's obligation to extend leave in the event of temporary disability of the employee is enshrined in Art. 124 of the Labor Code of the Russian Federation, within the meaning of which the employee must confirm the fact of temporary incapacity for work with the appropriate document (certificate of temporary incapacity for work), which gives the right to extend leave.

For your information

An employee can provide the employer with a certificate of temporary disability no later than six months from the date of restoration of working capacity (establishment of disability), as well as the end of the period of release from work in cases of caring for a sick family member, quarantine, prosthetics and after-care (Article 12 of the Federal Law of December 29, 2006 No. 255-FZ “On compulsory social insurance in case of temporary disability and in connection with maternity”).

Based on the above, we believe that failure by an employee to provide documents about illness is not a guilty violation of labor legislation.

How to transfer a vacation

The employee must submit a corresponding application to the employer if he decides:

• reschedule the start date of vacation;
• transfer to another date vacation days that coincided with being on sick leave;
• extend annual leave for sick days.

This application is drawn up in any form and is submitted either in person or by mail. The application must indicate:

• subject of the request (transfer/extension);
• the basis for submitting the petition (illness, injury, other reasons);
• desired transfer/extension dates.

So, for example, an application to postpone the start of vacation due to sick leave taken before vacation may look like this:

After receiving a written application to postpone/extend leave, the employer has the right to decide to accept the offer, if there are legal grounds for doing so. After which a corresponding order is issued, which indicates the decision:

• making changes to the vacation schedule with approval from the trade union committee;
• transferring vacation days.

If an employee went on sick leave right before the start of the vacation, the corresponding order came into force and an entry was made in the personal card, then appropriate changes should be made. Thus, the previous order can be canceled due to a change in the start date of the vacation, and the entry in the personal card can be corrected.

There are no grounds for making such corrections at the legislative level, so changes are made as is customary in the rules of personnel records management. Corrections are made as follows: the previous text is crossed out and the corrected text is written in the free space. Next to the correction, you must put the date and signature of the person responsible for filling out the document being corrected with a transcript of your full name and position.

An order to reschedule a vacation may look like this:

How to apply for sick leave during vacation followed by dismissal?

Upon dismissal, an employee must formalize:

1. Document in connection with vacation.
2. Document due to dismissal.

This will give the HR department the right to draw up two orders that allow the employee to go on vacation and resign. If the dismissal order has already been approved, and the citizen fell ill while on vacation, then no changes to the dates are allowed. If the employment contract is terminated after the start of the vacation, then the work book and pay slips must be issued to him immediately.

Personnel documents must be drawn up in accordance with current legislation on the basis of an application written by a person in free form. The HR specialist must create a document based on Art. 84. 1 Labor Code of the Russian Federation

. When the documents are ready, management forms calculations regarding dismissal and vacation.

How sick leave and vacation pay are paid when vacation is postponed

Payment of disability benefits is made if recovery occurred before the start of the vacation or if the sick leave was closed while the employee was on paid annual leave (including additional). But if an employee fell ill while on other types of leave (in particular, on leave at his own expense), then he would not have the right not only to payment, but even to the issuance of sick leave.

As for the payment of vacation pay, there are nuances. Let's take a closer look at them.

Sick leave

A certificate of incapacity for work closed before going on vacation is paid in full upon its presentation. The basis for receiving temporary disability benefits is sick leave - the benefit is paid in full for all days of illness/injury in accordance with Part 1 of Art. 6 of the Law “On Compulsory Social Insurance...” dated December 29, 2006 No. 255-FZ (hereinafter referred to as Law No. 255-FZ).

The same applies to payment of sick leave to care for a sick relative, if it was closed before the start of the vacation, the benefit is paid in accordance with Part 5 of the above article.

If the certificate of incapacity for work was opened before the vacation, and closed after it began, the temporary disability benefit is paid in full for all days of illness, if we are talking about annual paid leave (Clause 1, Part 1, Article 9 of Law No. 255-FZ).

If the sick leave was closed while on study leave, maternity leave, leave without pay, etc., then no benefits are paid for this period of overlap between sick days and vacation pay.

When calculating the amount of temporary disability benefits, the length of service of the insured person, that is, the employee, matters. According to Part 1 of Art. 7 of Law No. 255-FZ, depending on the number of years of work for the policyholder, benefits are paid in the amount of 60% to 100% of average earnings. Moreover, if sick leave was issued to care for a child who was being treated at home, then starting from the 11th day, the benefit is paid in the amount of half the average earnings (clause 1, part 3 of the above article).

According to Part 1 of Art. 14 of Law No. 255-FZ, the average earnings for calculating sick leave are calculated for 2 calendar years that preceded the onset of illness/injury. In other words, in 2021 the income base is taken from 2021 and 2021.

In 2021, the procedure for calculating and paying sick leave has changed. According to the new rules, the benefit cannot be less than the minimum wage, based on a full calendar month of illness. In addition to the minimum wage, when calculating sick leave pay, increasing regional wage coefficients established in the region of residence are taken into account. The condition applies to all types of diseases: quarantine, injury, flu and others. Comparing average earnings taking into account length of service and the minimum wage, we pay the benefit at the higher value.

The transition to direct payments from the Social Insurance Fund raises the most questions. Until recently, the FSS worked with policyholders on an offset principle: the employer paid benefits, and transferred the difference between the amounts of accrued contributions and paid benefits to the Fund. The situation began to change in 2011, when the “Direct Payments” project was launched in a number of pilot regions; in 2021, this project will spread throughout the country. The essence of the project is that the employer transfers contributions to the Social Insurance Fund in full, and the Fund directly pays benefits to the employee.

When the employee brings documents confirming his right to receive benefits, and the employer checks them for compliance, then an application is drawn up to the Social Insurance Fund in the form established by Social Insurance Fund Order No. 578 dated November 24, 2017. It is required for all insurance cases, including for the period of temporary disability.

The employer calculates the benefit and pays the amount for the first 3 days, withholding personal income tax (clause 1, clause 2, article 3 of the Federal Law of December 29, 2006 No. 255-FZ; Decree of the Government of the Russian Federation of April 21, 2011 No. 294; clause 1 of Article 217 Tax Code of the Russian Federation).

The employee will receive the rest of the benefit from the Social Insurance Fund, so the Fund withholds personal income tax from it.

An employee can choose a convenient way to receive benefits: to a bank account, by postal transfer or to a Mir payment card. Benefits can be transferred to the employee, either to a salary account or to any other account.

You can fill out and submit to the FSS the electronic register for the “Direct Payments” project in accounting software modified to meet the requirements of the project, in the information systems of specialized telecom operators, as well as in the free automated workplace “Preparation of calculations for the FSS”, which is available for download on the official website of the FSS.

Within 10 calendar days from the date of receipt of the full set of documents, the regional branch of the Social Insurance Fund makes a decision on the assignment and payment of benefits. If an error is identified during the processing of documents, the documents will be returned to the employer for correction.

You can find out about the benefit paid in the personal account of the recipient of services. You can log in with your login and password from the government services portal.

Is sick leave paid during vacation?

Many workers are interested in whether sick leave is included in vacation pay. Yes, calculations on a temporary disability certificate are equal to working time and are calculated as follows:

• The duration of the insurance period is considered, except for non-insurance periods;
• Average daily earnings are calculated for the previous 2 years and divided into 730 days;
• 10 days are allotted for calculating benefits.

If the sick leave falls on vacation days, then payment for the temporary disability certificate is made according to the general rules, that is, the employee is accrued benefits in full. Even if a forgetful employee did not inform the employer about his illness, according to the law, he is required to pay for sick leave brought after rest and days of illness.

Russian legislation provides for cases when sick leave during vacation is not paid. Legal justification for refusal

happens if:

• sick leave is taken during the employee’s vacation period, without saving wages;
• during study leave;
• the period of maternity leave has begun;
• A certificate of incapacity for work has been issued to care for elderly relatives or minor children.

Sick leave on vacation at your own expense is not paid and is not reflected in the report card. Since it is issued from the day the rest days end, all vacation days are o. Code “B” marks the days of illness on the timesheet when the employee was supposed to return to work.