Article 124 part 4. Vacation and rest time. Untimely notification of the start of the holiday

RF CODIFICATION current legislature Russian Federation Labor Code PART THREE of the Labor Code of the Russian Federation. ARTICLE THREESection V of the Labor Code of the Russian Federation. REST TIMEChapter 19 of the Labor Code of the Russian Federation. VACATION Article 124. Extension or postponement of annual paid leave Annual paid leave must be extended or postponed for another period determined by the employer, taking into account the wishes of the employee, in the following cases: temporary disability of the employee; performance by the employee during the annual paid leave of state duties, if for this purpose the labor legislation provides for exemption from work; in other cases provided for by labor legislation, local regulations.

Article 124 of the Labor Code of the Russian Federation. extension or postponement of annual paid leave

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It is prohibited not to grant annual paid leave for two consecutive years, as well as failure to provide annual paid leave to employees under the age of eighteen and employees employed in jobs with harmful and (or) dangerous working conditions.

Lawyer's comment: Annual paid leave must be granted within the period specified in the vacation schedule.

Annual paid leave must be extended or rescheduled:

in connection with the temporary incapacity for work of the employee during the vacation period (meaning the incapacity for work only of the employee himself);
in connection with the performance by the employee during the vacation of state or public duties, if the labor legislation provides for exemption from work for this (for example, jury duty, participation in the work of election commissions, military training) (see para.
comments to Art. 170);
in other cases established by labor legislation, local regulations.

In cases where the vacation is extended, it is automatically extended by the corresponding number of days. The employee must notify the employer of the extension of leave.

Art. 124 tk rf: questions and answers

Attention

All these circumstances are specified in the legislation. These include, for example: temporary disability of an employee (meaning the disability of only the employee himself), if the employee fell ill before the start of the vacation; performance by an employee of state or public duties, if the legislation provides for exemption from work for their performance (for example, the duties of a juror, participation in the work of an election commission, military training, etc.); cases when the annual paid leave intended for the rest of the employee coincides in time with additional study leave having a different purpose (Art.

Art. 173 - 177 TK). Leave at the request of the employee is transferred to another period in case of untimely (i.e.

later than 3 days before the start of the vacation) payment of vacation pay (Article 136 of the Labor Code).

Study the "vacation" schedule with the material "Unified form No. T-7 - vacation schedule."

However, the orderly "holiday" process is violated in a number of cases. This happens in situations where an employee who went on vacation, instead of enjoying a vacation, sunbathing by the warm sea or skiing:

got sick;
was forced to perform public duties (those that require release from work by virtue of law);
did not rest, performing the functions provided for by labor legislation or intra-company local acts.

Under such conditions, annual leave must be extended or rescheduled for another period determined by the employer. At the same time, the wishes of the employee are taken into account. For example, an employee on vacation spent 7 days on sick leave.

Article 124. Extension or postponement of annual paid leave

The obligation of the employer to extend the leave in case of temporary disability of the employee is enshrined in Art. 124

The Labor Code of the Russian Federation, according to 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 the vacation.

The untimely submission by the employee to the employer of documents confirming the fact of being in a state of temporary disability, in this case, occurred due to the stay of S.

during the specified period of time on vacation in another region, away from the place of work and residence, and therefore cannot be considered a guilty violation by the employee of the norms of labor legislation. Thus, the court's conclusions about the plaintiff's abuse of his right to extend leave due to temporary disability were found to be incorrect (p.

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federal law dated 30.06.2006 N 90-FZ) If the employee was not paid on time during the annual paid vacation or the employee was warned about the start time of this vacation later than two weeks before its start, then the employer, at the written request of the employee, is obliged to postpone the annual paid vacation for another period agreed with the employee.

(Part two as amended by Federal Law No. 90-FZ of 30.06.2006) In exceptional cases, when the provision of leave to an employee in the current working year may adversely affect the normal course of work of the organization, individual entrepreneur, it is allowed, with the consent of the employee, to transfer the vacation to the next working year.

At the same time, leave must be used no later than 12 months after the end of the working year for which it is granted.

If the employee was not timely paid for the annual paid leave or the employee was warned about the start time of this leave later than two weeks before it began, the employer, upon the written application of the employee, is obliged to postpone the annual paid leave for another period agreed with the employee.

At the same time, leave must be used no later than 12 months after the end of the working year for which it is granted.

Official text:

Article 124. Extension or postponement of annual paid leave

Annual paid leave must be extended or postponed for another period determined by the employer, taking into account the wishes of the employee, in the following cases:

temporary disability of an employee;

performance by the employee during the annual paid leave of state duties, if for this purpose the labor legislation provides for exemption from work;

in other cases provided for by labor legislation, local regulations.

In exceptional cases, when granting leave to an employee in the current working year may adversely affect the normal course of work of the organization, individual entrepreneur, it is allowed, with the consent of the employee, to transfer the leave to the next working year. At the same time, leave must be used no later than 12 months after the end of the working year for which it is granted.

Lawyer's comment:

Annual paid leave must be granted within the period established by the vacation schedule. According to this article, this leave must be extended or rescheduled for another period in case of temporary disability of the employee or when the employee performs state duties during the vacation, if this provides for release from work or in other cases provided for by laws, local regulations. When postponing annual paid leave in these cases for another period, the employer must take into account the wishes of the employee.

A different procedure is established for postponing the annual paid leave if the employee was not paid for the time of the leave in a timely manner or the employee was warned about the start time of the leave later than two weeks before it began. In this case, the employer, at the written request of the employee, is obliged to postpone the annual paid leave for another period agreed with the employee.

According to paragraph 3 of Article 124, in exceptional cases, in order to avoid adverse consequences for the employer, annual paid leave may be postponed with the consent of the employee to the next working year. This leave must be granted to the employee no later than 12 months after the end of the working year for which this annual paid leave is granted. At the same time, he can join a new vacation.

It is important to prohibit the failure to provide annual paid leave for two consecutive years, as well as the failure to provide this leave to employees under the age of 18 and employees employed in jobs with harmful and (or) dangerous working conditions. In these cases, the transfer of vacation is not allowed. It should be borne in mind that employees with two or more children under the age of 14, as well as employees with a disabled child under the age of 18, single mothers raising a child under the age of 14, fathers raising a child under the age up to 14 years without a mother in accordance with Article 263 Labor Code may be provided additional holidays without saving wages up to 14 calendar days, which, at the written request of the employee, are added to the annual paid leave (in whole or in part).

When transferring annual paid leave in the cases discussed above, this additional unpaid leave cannot be transferred to the next year. Transfer to the next working year of additional holidays established in collective agreements for employees with two or more children under the age of 14, as well as an employee with a disabled child under the age of 14, for a father raising a child under the age of 14 without a mother (Article 263 of the Labor Code) is prohibited.

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Judicial practice under Art. 124 Labor Code of the Russian Federation

Definition of the Armed Forces of the Russian Federation N 69-KG13-4 of October 4, 2013
In accordance with Art. 128 of the Labor Code of the Russian Federation, the employer is obliged, on the basis of a written application of the employee, to provide leave without pay to working old-age pensioners - up to 14 calendar days a year, in connection with which order N 1129 dated July 11, 2012, based on the application, the plaintiff was granted leave without keeping wages, as a working pensioner, in the amount of 5 calendar days from August 18, 2012 to August 22, 2012.
Definition of the Constitutional Court of the Russian Federation N 2302-O of October 23, 2014
Part two of Article 124 of the Labor Code of the Russian Federation provides additional guarantee exercising the employee's right to annual paid leave - the employee's right to postpone the vacation in the event that the employer fails to fulfill the obligation to notify the employee of the start time of the vacation against signature.
Definition of the Armed Forces of the Russian Federation N 301-KG15-5751 of June 16, 2015
Under these circumstances, the courts, guided by the provisions of Article 114 of the Labor Code of the Russian Federation, came to the conclusion that the simultaneous use of two or more vacations is not provided for by the labor legislation of the Russian Federation, and the fund rightfully refused to accept the society for offsetting unreasonably incurred expenses for the payment of care benefits for the child during the time the named employees are on the next main vacation.
Determination of the Armed Forces of the Russian Federation N KAS11-732 of December 22, 2011
The argument of the cassation appeal of the Ministry of Defense of the Russian Federation that the need to notify the command about going abroad by civilian personnel who have obligations related to restricting going abroad is justified by the specifics of the activities of military units and does not contradict Article 113 of the Labor Code of the Russian Federation, does not indicate the illegality of the appealed decisions, since these norms of the law do not directly regulate the legal relations in question.

Article 124. Extension or postponement of annual paid leave

Annual paid leave must be extended or postponed for another period determined by the employer, taking into account the wishes of the employee, in the following cases:

temporary disability of an employee;

performance by the employee during the annual paid leave of state duties, if for this purpose the labor legislation provides for exemption from work;

in other cases provided for by labor legislation, local regulations.

The right to rest of any working person is regulated by the Constitution of the Russian Federation and Ch. 19 of the Labor Code. Leave is granted to each employee annually for a period of 28 calendar days. In some cases, the employee is entitled to additional rest days, for example, for irregular working hours, as well as for working in harmful or dangerous working conditions, in particular for medical staff.

If an employee is employed in the current year, then for the first time he will be able to go on vacation in six months for up to 14 days. The number of vacation days is determined by calculation as the product of months of work by a factor of 2.33. An example of the calculation can be found.

At the same time, it is important to correctly calculate the length of service of an employee in the enterprise. The material “Art. 121 of the Labor Code of the Russian Federation: questions and answers.

During the vacation period, the employee retains his workplace and average earnings.

We prepare vacation documents

The order of rest of employees is determined in December for the next working year and is fixed in the vacation schedule. A sample document can be downloaded.

The schedule is approved by the director of the enterprise in a specially issued order.

Not later than 2 weeks before the start of the planned vacation, the employee should be notified of the start date of the vacation against receipt.

The vacation plan must be followed by both the employer and employees. But how to give leave to an employee who is employed this year, because he is not included in the rest order schedule? In this case, the employee should write and coordinate it with the employer.

Leave is issued by the relevant order, which indicates the period of rest and length of service for which this leave is granted. The company approves the order form independently. Many employers continue to use the T-6 form.

The document is printed in 2 copies: one for the personnel department and one for the accounting department. A note-calculation of the amount of vacation pay in the form T-60 is attached to the order.

How to determine the amount of vacation pay

Vacation days are paid according to the average earnings (SZ) of the employee, which is determined by the formula:

SZ \u003d D / 12 / 29.3,

D - the sum of all employee income for the last 12 months, including allowances and bonuses;

29.3 is an indicator of the average monthly number of calendar days.

Check out the nuances of calculating vacation pay in 2018 in the article "Calculation of vacation in 2018 - examples and features".

If for some reason the employee did not take the required 28 days of vacation, then he should be paid monetary compensation for unused vacation. At the same time, labor legislation prohibits non-provision of rest days for more than 2 years in a row. Otherwise, a fine is possible.

Labor legislation allows the possibility of recalling an employee from vacation. The remaining days of rest, he can take a walk at any time or add them to the next vacation. How to write such a review correctly, see.

An employee can take a vacation or receive monetary compensation for it before dismissal. Correctly arrange such a vacation and calculate vacation pay materials will help:

"How to arrange a vacation with subsequent dismissal".

Vacation pay and income tax

Vacation pay must be paid no later than 3 days before the start date of the holiday. The issuance of funds is carried out at the cash desk of the enterprise or by transferring to the employee's card. Confirmation of receipt of money is the signature of the employee in the expenditure order (form KO-2) or in the payroll (form T-53).

Do not forget to withhold income tax before issuing vacation pay and transfer it to the budget before the end of the current month. How to do it without errors, we tell.

What accounting documents need to be filled out after the vacation

If during the vacation the employee fell ill and after recovery provided a certificate of incapacity for work, then the remaining days of rest he can:

1. Take a walk.

How to extend vacation for sick leave during vacation, see.

2. Postpone to a later date, having previously agreed with the head of the company.

In this case, the employee should write on line 041.

Download forms and a sample of filling out an income tax return.

To prevent you from making mistakes in calculating, paying and taxing vacation pay, we have developed step by step instructions. Download it to always have it at hand.

Stay up to date on billing changes annual leave section will help you. We constantly update it with the latest and most relevant information.

Annual paid leave must be extended or postponed for another period determined by the employer, taking into account the wishes of the employee, in the following cases:

temporary disability of an employee;

performance by the employee during the annual paid leave of state duties, if for this purpose the labor legislation provides for exemption from work;

in other cases provided for by labor legislation, local regulations.

Commentary on Art. 124 Labor Code of the Russian Federation

1. Annual paid leave is subject to extension or postponement for another period determined by the employer, taking into account the wishes of the employee, when, due to certain circumstances, the leave cannot be used for recreation in the cases specified in the Labor Code and in other laws, local regulations.

2. In case of violation by the employer of the rules for granting leave (late notification of the time for granting leave, delayed payment of vacation pay - see), the leave is postponed by agreement of the parties to the employment contract for another period.

3. The employer may transfer annual paid leave to the next working year only with the consent of the employee and only in exceptional cases, with the obligatory granting of leave to the employee within the period established by part 3 of this article.

4. Regardless of any reasons, it is prohibited not to provide employees with annual paid leave for two consecutive years, and for some categories of employees (minors employed in work with harmful and (or) dangerous working conditions), leave cannot be transferred to the next working year.

Second commentary on Article 124 of the Labor Code

1. Supplement part 1 art. 124 should be recognized as significant. In accordance with its new edition, annual paid leave should not only be extended, but also rescheduled for another period. Moreover, this period is determined by the employer, taking into account the wishes of the employee.

In para. 3 and 4 the words "law" and "laws" are replaced by the words "labor legislation".

Part 2 Art. 124 in the new edition is formulated more strictly in relation to the employer. If earlier, in the cases specified in this part, the annual paid leave was postponed to another period by agreement between the employee and the employer, now the employer, upon a written application of the employee, is obliged to postpone the annual paid leave to another period. Moreover, the period for which the vacation is postponed must be agreed with the employee.

In the new edition, Part 3, Art. 124 fully applies not only to organizations, but also to individual entrepreneurs.

2. Part 1 of Art. 124 indicates the periods that are excluded from the time of the actual implementation of the vacation, if they fall on the time of the annual paid vacation granted to the employee.

In this regard, the vacation should be extended by an appropriate period of time.

3. Extension of leave is provided in cases of temporary disability of the employee. The time spent caring for a sick child or other family members is not grounds for extending the annual paid leave.

4. The Code (see Part 1, Article 170) provides for the retention of the place of work (position) for the duration of the employee's performance of state duties. Such duties include, for example, the performance of the duties of a member of the election commission, the passage of military training.

If the time of performance of state duties coincides with the time of annual paid leave, then the leave is extended by the corresponding number of days.

5. The Code (see Articles 173 - 177) provides additional leave to prepare for admission to educational institutions, passing tests and exams, preparing a graduation project. These holidays, according to their intended purpose, are called in practice educational.

If the time of the study leave coincides with the time of using the annual paid leave, the latter is transferred to another time, determined by agreement between the employee and the employer. Also by agreement between them study leave may be attached to annual paid leave (see part 2 of article 177 of the Labor Code of the Russian Federation).

6. Full or partial combination of annual paid holidays is allowed for persons working in the regions of the Far North and equivalent areas, but not more than two years (see part 3 of article 322 of the Labor Code of the Russian Federation). This means the possibility of transferring vacation from one working year to another.

7. A violation by the employer of the deadline for notifying the employee of the upcoming vacation (see part 3 of article 123 of the Labor Code of the Russian Federation, part 2 of article 124 of the Labor Code of the Russian Federation) may lead to the postponement of the use of annual paid leave, and also if the employee was not paid in a timely manner during the vacation (see part 9 of article 136 of the Labor Code of the Russian Federation).

In such cases, leave in accordance with Art. 124 order is postponed to another date.

However, under certain circumstances, the employee may be interested in using the leave at the time set by the schedule. It seems that in such cases, upon a written application of the employee and an agreement between the employee and the employer, it would be possible not to transfer the annual paid leave.

8. As a result of changing circumstances, the employee and the organization may need to postpone the vacation for another period.

In such cases, with appropriate justification by each party and by mutual agreement, the time of granting annual paid leave may be changed, and the necessary changes may be made to the vacation schedule in the manner established for its approval.

Circumstances (good reasons) for which the vacation schedule may be changed, it is advisable to provide in collective agreement, local normative act organization, adopted in the manner prescribed by the Labor Code of the Russian Federation (Articles 8, 371, 372 of the Labor Code of the Russian Federation).

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