Can vacation begin on a day off
The Labor Code guarantees the right to paid annual leave, which is measured in calendar days. This means that it includes both weekdays and weekends (with the exception of non-working holidays). In practice, vacation usually begins on weekdays, but in some cases it may be necessary to take vacation from a day off. What the employee, the HR manager and the accountant need to pay attention to in this case, and whether it is possible to register vacation exclusively on weekends.
The Russian Labour Code establishes a right to rest, and vacation is one of its types (Article 106 and Article 107 of the Russian Labour Code). Its standard length is 28 calendar days. For some categories of citizens this figure is increased. The right to it arises six months after employment.
The leave is granted in accordance with the schedule drawn up by the employer taking into account production processes and employees’ opinions. Further changes to this schedule are allowed only with the consent of both parties. For example, the employer may recall the employee from the leave for production-related reasons, or the employee may ask for the leave to be postponed to another time. The employee must be given at least two weeks prior to starting his vacation (Article 123 of the Russian Labour Code).
The Labor Code allows taking all days at once or splitting the leave into parts. The number of such parts is not limited, but at least one of them must be at least 14 calendar days (Article 125 of the Russian Labour Code). The duration of the other parts is not regulated – in theory they can be taken even 1 day per calendar year. However, it is not allowed to replace the leave with monetary compensation, except when an employee is dismissed from the company. It is also not allowed to postpone the leave to the next year.
The start day of the leave must be agreed between the employee and the employer. In practice, most often the leave is taken from the first working day after the calendar weekend. But this is not necessary – the start date of the leave can be anything if it suits both parties – either from the middle of the working week or from a day off.
Vacation from a day off
With a five-day work week, vacation from the weekend begins either on Saturday or Sunday. Most often, employees do not use this opportunity, because it makes no sense – on these days a person does not go to work and can use them at their discretion. But going on vacation on one of them is not forbidden.
There can be several reasons for this:
- Earlier accrual of vacation pay. The accountant is required by law to transfer vacation pay no later than 3 days before vacation begins. If the first day of vacation is Monday, the employee receives the money on Thursday. If you specify Saturday as the first day, the money will be given on Tuesday. In some cases (large expenses, a tourist trip, an urgent need for finances) this plays a decisive role;
- an organization often takes an employee to work on a day off. Despite the fact that working on a day off is a right, not an obligation, of the employee (except in a few special cases), this practice may be “voluntary and compulsory. If a person has planned a trip or simply does not want to work on a Saturday or Sunday the day before a vacation, he or she can apply for leave on those days to ensure that he or she does not have to leave work;
- The employee has a few days of vacation left, and for some reason they cannot take them during working hours, or the person prefers to work himself. In this case, he can write a vacation from the day off. The two days will go to vacation, and the organization will have no obligation to grant them in the future. In this way, the employer does not incur vacation arrears, and as a result, he does not face trouble in the case of inspections. In this case, the number of working days is almost not reduced and the production process is not affected. The employee himself will get paid for these days, which for some people is preferable to a real vacation.
These are just some of the reasons, in a particular case, the motives may be different. For example, a person needs to go to work on a certain date, and the first day of vacation is chosen with this circumstance in mind.
In this case, it does not matter what kind of day off we are talking about – a calendar day off, or a “sliding” day off, which happens with people with a shift schedule.
It should be borne in mind that the employer has no right to force a person to write an application for leave specifically for a day off. Similarly, if an employee has already used the 14 days of vacation he is entitled to, but wants to split the rest of it between working days, forcing him to add two days off to his vacation against his wishes is not permissible. This rule, however, only applies until the vacation schedule is drawn up. When it is agreed, the employee goes on vacation for the number of days specified in the document.
In addition to calendar days off, there are non-working holidays. Their difference is that they are not included in the regular vacation and are not subject to payment (Art. 120 of the Labor Code). At the same time the vacation is extended by the number of public holidays.
Even if an employee works a flexi-time schedule, and does not rest on holidays, these days are not included in the regular vacation. Therefore, writing an application for leave from a public holiday most often makes no sense – this day is effectively excluded from the calculation of leave and is not subject to payment. Nevertheless, in theory, this is not prohibited, for example, in order to receive vacation pay earlier.
It also makes sense if a person works a flexi-time schedule and has a work shift that falls on a public holiday. In this case, he will not receive money for this day, since non-working holidays are not paid to anyone, but he will be able to go on vacation earlier.
In this case, if the holiday falls on a calendar day off and is thus transferred to a weekday, then from the date of the transfer it is possible to write an application for vacation. For example, March 8 fell on a Sunday, so the day off was moved to Monday. In this case, an employee may apply for leave from Saturday or Monday (March 7 or 9, respectively).
Leave only on weekends
Sometimes an employer refuses to give a person leave for some reason. For example, the company has a shortage of staff, and an employee’s departure will have a negative impact on the work process. Some employers offer to write an application for leave only for the weekend (Saturday and Sunday, or those days that are days off according to the schedule).
Despite the fact that the employee receives payment for these days, such an action violates the employee’s right to rest. Since, in accordance with Article 107 of the RF Labor Code, vacation and weekly uninterrupted rest (weekends) are different types of rest, their regular combination actually lengthens the working time of employees during the year and does not give them a full rest.
This contradiction is indicated in the letter of the Ministry of Labor of 07.12.2018, which states: “The Code does not prohibit granting leave to an employee if the beginning of leave falls on a weekend and (or) a non-working holiday. At the same time, granting annual paid leave exclusively on weekends will not comply with the requirements of the Labor Law of the Russian Federation”.
Despite the fact that the letters of the Ministries are explanatory in nature and are not officially regulatory acts, it is recommended to adhere to them. The established practice is such that the information contained therein becomes an instruction on the application or interpretation of certain legal norms. Therefore, despite the fact that the LC itself does not directly prohibit vacation only on weekends, since December 2018 this practice is considered illegal.
At the same time, the wording in the Letter can be understood in two ways. It can be interpreted to mean that it refers only to the permanent practice of granting regular leave exclusively on weekends. Therefore, we can assume that a single case will not be regarded as a violation. However, if possible, it is better for the HR manager to insure and not make out vacation only for the weekend. If there is a need, it is recommended to add at least one working day (Friday or Monday in a five-day work week or according to the schedule). In this case there is no formal violation of the Letter from the Ministry of Labor, because the employee has at least one day off and his rights are not infringed.
Important: If an audit finds that an employee is granted vacation only on weekends, this approach may be viewed as a hidden payment of compensation for unused vacation time. In this case the employer could face a fine.
According to part 1 of Article 5.27 of the CAO RF, a warning or a fine is possible for a primary violation:
From 1000 to 5000
From 1000 to 5000
from 30,000 to 50,000
According to part 2, article 5.27 of the Administrative Offences Code of the Russian Federation, a repeated violation leads to increased fines and disqualification for one to three years:
from 10 000 to 20 000
from 10 000 to 20 000
From 50 000 to 70 000
How to draw up a vacation
Weekend leave is handled in the same way as any other leave. The employee writes an application to the supervisor, which specifies:
- The date on which the leave begins;
- Its duration in accordance with the vacation schedule.
The day of leave is calculated as usual: by the number of calendar days, with the exception of those that fall on holidays. If this happens, the leave is extended by an appropriate period of time (usually by 1 day).
On the basis of the application, an order is issued, and the accounting department accrues wages. In this case, the accountant should remember that the vacation pay in this case should be transferred earlier. Also, marks are made in the timesheet and personal card of the employee.