The right to annual paid leave in our country is guaranteed to every employee by law. The articles of the Labor Code regulate the rules and all the nuances relating to holidays, as well as their transfer or refusal to provide certain types for some reason. The decision on the possible refusal by the employer to a subordinate on vacation depends on the specific situation. The general rule states: a refusal when submitted in a timely and correctly executed application is a violation of the right to rest and is therefore illegal.
And if, nevertheless, the employer refuses the vacation, what should I do? In the absence of proper grounds for action, it is subject to appeal by law.
How is annual leave granted?
"Regulates" the holidays chapter 19 of the Labor Code of the Russian Federation. Employees whose work experience in the company exceeds 6 months can legally rest. After this period, the employee may be granted rest at his request, or he may be included in the vacation schedule for the next calendar year. It is this document that governs the provision of annual paid leave in a particular organization.
Such a schedule is drawn up at each enterprise or institution at the end of the current year. It must be approved no later than December 17. All employees are familiarized with the sequence of signed vacations.
Can they refuse early leave?
If an employee decided to rest before the expiration of a six-month period of work, can the employer refuse to leave and in which case? This occurs when an employee does not belong to any of the preferential categories listed below.
Those who are on the list of beneficiaries can go on their first vacation and earlier than the end of the six-month working period.
Who are these beneficiaries? The right to go on an early vacation belongs to:
1. Minors.
2. Women planning a “planned” decree.
3. Those who have adopted a small child (up to 3 months).
4. The husbands of women "on maternity leave."
5. Part-time workers, if for this period of time there is a vacation at the main place of work.
6. Wives of servicemen who are entitled to leave at the same time as husbands.
Who else belongs to the preferential category
Additionally, we are talking about:
1. Veterans and disabled war.
2. Affected by the Chernobyl accident.
3. Heroes of Russia, Social Labor, USSR.
4. Honorary donors.
5. The victims at the training ground in Semipalatinsk.
If you do not belong to one of the preferential categories listed, but you need a vacation, for example, due to health reasons or for family reasons, the law does not prohibit the provision of the right to rest to such an employee. But it should be understood that this action relates to the rights, and not to the obligations of the employer. If he complies with the procedure for granting annual paid leave, the law is not entitled to obligate him to give an ordinary employee (not a beneficiary) rest before working out a half-year experience.
Is it possible to refuse vacation on schedule?
For each calendar year, a schedule of planned holidays with the order of their provision is drawn up and approved at the very end of the current year - in December. The approved document is binding on both parties - the employer and the employee. But can an employer refuse a vacation contrary to the established deadlines, motivating the impossibility of replacement or other reasons important for production? How legal are his actions?
From a formal point of view, such a decision is contrary to labor law. In practice, the authorities are given the right to transfer the vacation to another time. This is done only when such an alternative finds understanding with the vacationer himself. That is, this action is in accordance with the law if the employee agrees with the transfer proposal.
Some nuances
A similar transfer of leave under the law is possible for the next year. But here we should not forget about the ban of a two-year period of work without official rest. In addition, leave is not transferred to minors working, even if they agree.
Can an employer refuse a vacation without a transfer offer? Definitely not. The law categorically prohibits refusal in the event of an officially drawn up and signed schedule.
But this does not apply to situations in which subordinates request leave at other times that are not documented. If the application for vacation "out of turn" is filed without any special reason, this may cause a completely legitimate refusal.
Sometimes it is a question of dividing the annual paid leave into parts. But at least one of them should not be shorter than 14 days.
Instead of rest - compensation?
Is it possible to agree this way - the head refuses to leave on vacation, but instead offers to pay compensation for his entire period. According to the law, this is not possible. Although the Code provides for the option of paying monetary compensation in return for the unrealized right to rest, money is only allowed to be paid for at a time that exceeds the annual mandatory period of 28 calendar days.
For example, during a vacation of 35 days, the employee, at his own request, has the right to receive compensation for the period of 7 days. And, we recall once again, such a replacement of vacation days with money can take place only at the initiative of the employee, and not of the bosses.
In addition, there are categories listed in the third paragraph of Article 126 of the Labor Code of the Russian Federation, to which this right to compensation is not applicable, and they have to rest the entire set period as a whole.
Holidays without pay - an example and important nuances
The so-called administrative (or unpaid) leave can be taken by the employee at any time. It does not depend on the length of service. Payment is not saved. To obtain such an employee should send an application to the employer with a request and, most importantly, a request-justification, that is, explain the need for such. Refusal or consent depends on how important the motivation of the employee seems to the authorities.
Is it possible to refuse leave without content? Yes, except when both of the following conditions are met at once:
1. Citizens belong to the category of those who have the right to compulsory provision of such administrative rest.
2. The "no maintenance" days limit regulated by law has not yet been exhausted by them.
Who belongs to the category of such beneficiaries? Requests cannot be denied:
1. To participants of the Second World War. For them, the limit on the duration of administrative leave is 35 days per year.
2. For working disabled people - the same period for them is 60 days.
3. Those who have reached retirement age. If a pensioner continues to perform labor duties, he is granted the right to annual leave without maintenance for 14 days.
4. The widows or widowers of those who died in the service or as a result of an injury, illness, wound that occurred due to an industrial reason. Here the limit is also equal to 14 days.
5. Five days a year are required to be obligatory provided to those who have had the birth (death, marriage) of a close relative.
This list, established by Article 128 of the Code, is not exhaustive. Additional guarantees in the social sphere are possible in separate legislative acts and internal regulatory documents of employing companies. Most often, at their own expense, employees are rarely denied vacations.
In the photo below, you can see how an application for a vacation looks like without saving wages (sample).
Talk about vacations for women
Now we are talking about social vacations and concerns pregnant women and young mothers who have left for the workplace. These persons are classified as employees protected by law.
According to the Labor Code, all women are guaranteed the right to use maternity leave, as well as long leave to care for a baby until he is three years old. But in real conditions, the rights of pregnant women and young mothers are very, very often violated.
Can they not let go on another vacation on the eve of the decree?
Can an employer refuse to leave a pregnant employee going on a maternity leave, justifying it with a forthcoming decree (and such situations are not uncommon)? It should be clearly understood that such a refusal is one of the most flagrant violations of labor law.
In fact, the fact of pregnancy does not "work" for the employer, but for the employee. She goes into the category of "beneficiaries" and may request another vacation outside the schedule.
It is quite legal and very convenient for the expectant mother to go on maternity leave right after the next vacation. If the authorities refuse to implement such an option, this already gives the right to appeal to higher authorities.
Unfortunately, one cannot give such an unambiguously positive answer to the question of whether a pregnant woman can refuse another vacation in the most general case (when it is still not a maternity leave). An employer may not let an adult employee go on vacation outside the agreed schedule. However, a pregnant woman enjoys additional privileges. For example, it is impossible to dismiss her for absenteeism.
But can the authorities not let the employee go on maternity leave?
What is maternity leave? In fact, it consists of two legally unequal parts - maternity leave and long leave provided for child care. The first, as such, does not apply to holidays.
The basis for its provision and payment is a sick leave certificate. That is why the refusal to provide such a period of rest is impossible in principle.
Holidays for caring for a child, according to the general rules, are granted until the moment when the baby reaches the age of three. Their duration is not necessarily exactly three years. A woman is entitled to apply for such leave on any day of the specified period. Vacation ends automatically the next day (working) after the three-year birth date of the baby.
It can be provided not only to the mother, but also to any person who actually cares for the child. At the same time, payment (rather modest, in the form of social benefits) is laid down by law only in the first year and a half.
Quite often (mainly for financial reasons) a young mother is forced to go to work before the baby is “knocked” for three years. But sometimes, for family reasons, she needs to return to maternity leave again. The employer may be against such a decision.
The law determines that such a refusal refers to violations of social guarantees prescribed in the Labor Code. That is, having interrupted the decree ahead of schedule, the woman does not lose the right to re-take the same leave in case of need.
What failures are legal?
The main part of the provisions of labor legislation is focused on protecting the interests of workers. But it also contains rules that do not allow employees to abuse their rights. The list of those situations when the refusal of leave by the employer is legal is also similar.
So, we will list the reasons why you will be refused legal rest at the time that you have chosen for yourself:
1. An employee who does not belong to the preferential category, was requested vacation during the first half of the performance of labor duties.
2. An application in writing, duly executed (if accepted by the organization) was not submitted on time. There is no need to write an application in the case of holidays according to a pre-set schedule. In this case, it is enough to familiarize the employee in advance - for 14 days.
3. If the employee intends to issue a dismissal immediately after the requested leave.
4. If there is a sufficiently serious production need. But, as already mentioned, this basis is used only with the voluntary prior consent of the employee.
If you are denied, be sure to ask the reasons. Knowing them, you can easily figure out how legitimate the actions of the leadership are.
Art. 173-177 of the Labor Code of the Russian Federation: study leave
Such leave is provided for those citizens who combine study and work. In order for claims to receive such leave to be substantiated, a number of conditions must be met:
1. The education of the appropriate level by the employee is obtained for the first time. What does this mean in practice? If a correspondence student who does not yet have a higher education is working, he is entitled to student leave. But with a completed higher education, he can claim to be such only when studying in a magistracy or graduate school.
2. If a worker manages to study at the same time in several educational institutions at once, he writes an application for study leave only for an academic session in one of them - at the student’s choice.
3. When the employee is a part-time worker, such leave is not appropriate for him. Study leaves are given exclusively in the main place.
4. It is provided only subject to state accreditation of the educational institution where the employee receives his education.
5. An obligatory document attached to the application for study leave is a certificate-call issued by an educational institution.
6. The duration of such leave should be within the established limit. It may be exceeded, but only by mutual agreement with the employer.
If all of the above conditions on the part of the employee are met, but nevertheless he is denied student leave, the actions of his superiors can be considered as a violation of labor law, and it can be appealed in the prescribed manner.