Are unpaid leave days that coincide with public holidays included in the calculation period for calculating vacation pay?

Working year

A working year is a period of time starting from the day and month when the employee was hired until that day and month of the next year.
For example, if an employee is hired on December 21, 2021, then their first work year will begin on December 21, 2021 and end on December 20, 2021. However, work year boundaries may shift.

When granting paid leave to an employee, one should take into account the norm according to which leave is granted for periods of work included in accordance with Art. 121 of the Labor Code of the Russian Federation into work experience, giving the right to annual paid leave.

How are vacation pay calculated?

To calculate vacation pay, you must perform the following operations:

1. Calculate the total salary for the previous 12 months (calculated working year), excluding the amounts of payments that are not included in the calculation of average earnings for calculating vacation pay.
2. Divide the resulting amount by 12 (months) - we get the employee’s average monthly earnings.
3. Divide the average monthly earnings by 29.3 (where 29.3 is the average number of working days per month).
4. As a result, we get the average daily earnings.
5. Multiply the resulting value by the number of vacation days.

If an employee was on sick leave during the vacation, the days for which the employee received sick leave are deducted from the amount of annual income. Otherwise, the calculation scheme is identical.

Work experience for granting leave

The length of service that gives the right to annual basic paid leave includes:

• actual work time;
• the time when the employee did not actually work, but in accordance with labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, an employment contract, he retained his place of work (position), including the time of the annual paid leave, non-working holidays, days off and other rest days provided to the employee;
• time of forced absence due to illegal dismissal or suspension from work and subsequent reinstatement to the previous job;
• the period of suspension from work of an employee who has not undergone a mandatory medical examination (examination) through no fault of his own;
• the time of unpaid leave provided at the request of the employee, not exceeding 14 calendar days during the working year.

In Art. 121 of the Labor Code of the Russian Federation also lists periods not included in the length of service that give the right to annual basic paid leave:

• the time the employee is absent from work without good reason;
• time of parental leave until the child reaches the legal age;
• the absence of an employee from work due to his suspension from work in the cases provided for in Art. 76 Labor Code of the Russian Federation.

If such periods of time occurred during the working year, then the boundaries of the employee’s working year must be transferred to the number of calendar days that are not included in the length of service for calculating vacation.

How vacation pay is processed

An enterprise can establish the procedure for registering vacations at its own discretion, however, taking into account the basic requirements of the State Statistics Committee of the Russian Federation, set out in Resolution No. 1 of January 5, 2004.

A vacation calendar (schedule) is mandatory at every enterprise. Its form can be taken from the State Statistics Committee Resolution, or developed by the enterprise independently. Each employee of the enterprise is obliged to plan a vacation in advance and mark it in the vacation schedule.

The validity period of this document is one year (1.01 to 31.12), where vacations of all company employees are divided by month. Article 123 of the Labor Code of Russia obliges to draw up and approve a vacation schedule two weeks before the start of the new working year (deadline - December 17 of the current period).

When drawing up a vacation calendar, the responsible person must take into account the following:

• wishes of company employees;
• the current regulatory framework (acts, laws, regulations);
• the scope of the enterprise and the specifics of its work.

Every employee of the company must familiarize themselves with the vacation schedule signed by the company’s manager!

To grant leave to an employee, two main documents are required:

• application for leave from an employee (free form);
• vacation order (on behalf of the enterprise).

After which, the responsible person on the company’s side is obliged to make an appropriate entry about the vacation in the employee’s card and his personal account.

If leave without pay falls within two working years

The maximum number of days of unpaid leave that do not change the length of the working year is 14 calendar days during that working year.
Let's consider a situation where an employee of an organization goes on vacation without pay for 59 calendar days from 02/1/17 to 03/31/17. The period of his working year is from 02/14/16 to 02/13/17. The vacation falls on two period of the working year.

The question arises as to how the working year period of this employee will shift (59 - 14 = 45 calendar days), whether 14 calendar days should be subtracted from two working periods or from one.

In the case under consideration, the employee’s working year from 02/14/16 to 02/13/17 accounts for 13 calendar days of unpaid leave, which is less than the maximum allowable amount. Accordingly, the end of this working year will not change.

But for the next working year (from 02/14/17 to 02/13/18) there are 46 calendar days of vacation (59 calendar days - 13 calendar days) without pay. Therefore, the end of this year should be shifted by 32 calendar days (46 calendar days - 14 calendar days), i.e. this year will end on March 17, 2021.

How is sick leave calculated?

Every working citizen is entitled to payment of benefits in the event of temporary disability (except for industrial injuries), in other words, “sick leave”, according to the sick leave bulletin.

A sick leave certificate is issued at the enterprise in the following cases:

• employee illness;
• if an employee is forced to provide care for a sick family member. A mother or father can apply for sick leave due to a child’s illness, depending on the age of which a different amount of sick leave payments is provided:
• if the child is 7 years old, sick leave is paid in full, however, no more than 60 days a year;
• if the child is from 7 to 15 years old, sick leave is paid for the first 15 days of the current illness and no more than 45 days a year;
• if the child is disabled, sick leave is paid in full for 120 days a year.

If the employment contract has expired, the former employee has the right to demand sick pay from the company within 30 days from the date of termination of the contract.

Sick leave is calculated using the following formula: all actual payments that the employee received over two years are summed up, then the resulting amount is divided by 730 (365+365), thus finding the employee’s average daily wage. Next, the resulting figure is multiplied by the number of days in the bulletin. It is important to understand that the result is an amount that is subject to percentage recalculation depending on the employee’s length of service.

If the employee's length of service:

• more than 6 months, but less than 5 years - the amount of payments is 60% of the average salary;
• more than 5 years, but less than 8 years – the amount of payments is 80%;
• more than 8 years – the payment amount is 100%.

Leave for working pensioners

In some cases, granting leave without pay at the request of employees is not a right, but an obligation of the employer.
The list of such cases is given in Art. 128 Labor Code of the Russian Federation. In particular, working pensioners, upon their application, must be granted leave without pay for up to 14 calendar days per year. Since this article does not indicate which year is meant, calendar or working, this norm should be considered in combination with other articles of the Labor Code of the Russian Federation. When legislators mean “working year,” they indicate so in the Labor Code of the Russian Federation. An example would be Art. 121–122, 124–126, 137, 263 Labor Code of the Russian Federation. In particular:

• Art. 126 - on the impossibility of replacing part of the vacation transferred to the next working year with monetary compensation if it does not exceed 28 calendar days;
• Art. 137 - on deduction from the employee’s salary upon his dismissal before the end of the working year for which he has already received annual paid leave, for unworked vacation days;
• Art. 263 - on the prohibition on transferring additional leave without pay to the next working year for persons caring for children.

Thus, since in Art. 128 of the Labor Code of the Russian Federation there is no reference to the working year, then legislators meant the calendar year.

There is no need to include vacation at your own expense in the calculation of vacation pay.

Situation

The employee is granted regular leave of 26 calendar days from May 3, 2021.

Data for calculation

The employee's salary is 700.00 rubles.

From November 10 to November 19, 2021, the employee was granted leave without pay (at his own expense).

Average earnings are calculated based on wages actually accrued for 12 calendar months worked before going on vacation in May 2021 (May 2021 - April 2021) (see table):

Calculation

Step 1. Analyze the earnings used to calculate average earnings.

When the 12 months taken into account for calculating average earnings included months in which, according to the law, the employee was released from work with partial or no pay, these months are excluded from the calculation, except for months in which the accrued wages were not lower than wages. fees accrued in full months.

We exclude from the calculation the accrued salary for November 2021 in the amount of 366.67 rubles, since this month the employee was granted leave without pay.

The salary taken into account is RUB 7,700.00. (RUB 8,066.67 – RUB 366.67).

Step 2. Calculate your average daily earnings.

Average earnings are calculated by dividing the employee’s salary for the months taken to calculate the average earnings saved during vacation by the number of these months and by the average monthly number of calendar days equal to 29.7.

Average daily earnings will be 23.57 rubles. (RUB 7,700.00 / 11 months / 29.7).

Step 3. Determine the earnings saved during the labor leave.

We multiply the average daily earnings by the number of calendar days of vacation:

23.57 rub. × 26 days = 612.82 rubles.

Expert commentary

Please note the following.

To justify excluding November 2021 from the calculation period, it is necessary to compare the employee’s payment in November with all other months. At the same time, for comparison, for November 2021, only wages accrued to the employee for 11 working days are accepted (according to the schedule - 21 working days), since the employee was granted leave at his own expense for 10 calendar days. As a result, the employee’s remuneration level in September 2021 (RUB 366.67) turned out to be lower than the remuneration level for the remaining months.

Justification: clause 12 of the Instruction on the procedure for calculating average earnings, approved by Resolution of the Ministry of Labor of the Republic of Belarus dated April 10, 2000 No. 47.

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Payment terms

The payment of vacation pay is regulated by Article 5.27 of the Administrative Code of the Russian Federation and Article 236 of the Labor Code. In total, according to the law, the company is obliged to pay vacation pay no later than 3 days before the start of the vacation period. Otherwise, for each day of delay, the company pays penalty interest to the employee. The law on the procedure for payment of vacation pay has no exceptions. Otherwise, Arbitration Law provides for penalties against both the enterprise and the head of the organization.

The employee is required to notify management of the planned vacation at least two weeks before the start of the vacation.

Application Rules

The writing process follows traditional rules for written statements. The following must be indicated:

• name of company;
• name and position of the manager;
• similar data of the applicant;
• the word "statement";
• the request itself, indicating the reason why the employee is forced to be absent from work.

The application must indicate the duration of absence.

Sample application for leave at your own expense

An application for unpaid leave is written by hand on a blank A4 sheet or in a similar format on a computer, then printed and signed, handed over to the personnel officer and manager for consideration and a decision. A sample application for leave without pay can be downloaded here.

If the organization has independently developed a standard form for this document, you can draw up an application for leave at your own expense using the sample issued by the personnel service. An example of such a form can be downloaded here.