If your vacation falls on a holiday. From what date should vacation start when working in shifts? Holiday from Sunday with a five-day working week

Problem

I work in shifts of 2 through 2. Starting October 27, I am going on vacation, and this is my first day off. Is it legal to send people on vacation on a day off, because when you work a five-day shift, vacation doesn’t start on Saturday (on any day except weekends)

Solution

Hello,

Usually, people are sent on vacation according to the vacation schedule established in the organization.

In accordance with Article 123 of the Labor Code of the Russian Federation, the priority of granting paid vacations is determined annually in accordance with the vacation schedule approved by the employer, taking into account the opinion of the elected body of the primary trade union organization no later than two weeks before the start of the calendar year. The vacation schedule is mandatory for both the employer and the employee. The absence of such a schedule is a violation of labor laws. The employee must be notified by signature of the start time of the vacation no later than two weeks in advance.

As I understand it, we are talking about the fact that the start date of your vacation falls on the day when, according to your work schedule, you should rest?

As for the phrase “when you work a five-day shift, vacation doesn’t start on Saturday.” Here you are a little wrong, vacation can begin on a day off, labor legislation does not contain restrictions in this regard. The day of the week from which the vacation begins does not matter, since in accordance with Article 120 of the Labor Code of the Russian Federation, the duration of the annual main or additional paid leave of employees is calculated in calendar days.

Solution

Hello!

In general, what is vacation? This is time free from work, time for rest, and therefore it is logical to send you on vacation from the working date for you, because if you are sent on vacation on your day off, then it turns out that you are sent to rest on your vacation.

In general, vacation is provided on the basis of a vacation schedule, which is mandatory for the employer and for the employee, and what this schedule looks like is the employer’s priority, he is not even obliged to familiarize you with the vacation schedule, the Labor Code of the Russian Federation does not provide for this.

You must be notified two weeks in advance of the start of your vacation.

And if you work according to a schedule - shift work two in two, and if the schedule is drawn up for every month, then it is not possible to include in the vacation schedule to go on vacation from your working shift. With employees who work five days a day, this is not difficult, but with those who have a shift work schedule or summarized accounting, it is simply not possible to calculate it; the vacation schedule is drawn up two weeks before the start of the new year, i.e. it should already be approved.

And what happened is that you were sent away from your day off, this does not violate your rights in any way, the main thing is that you were given vacation - 28 calendar days, and in accordance with the vacation schedule. This is more important than the fact that it happened on your day off.

Sending people on leave from a holiday, for example, November 4, is a clear violation, because... These are official holidays, and when you have days off, it’s simply impossible to calculate this in advance.

In principle, the concept of rest is specified in Article 107 of the Labor Code of the Russian Federation and among them are vacations:

Types of rest time are:

Breaks during the working day (shift);

Daily (between shifts) rest;

Weekends (weekly uninterrupted rest);

Non-working holidays;

vacation.

What is rest time in Article 106 of the Labor Code of the Russian Federation?

Rest time is the time during which an employee is free from performing work duties and which he can use at his own discretion.

The concept of working time, Article 91 of the Labor Code of the Russian Federation

Working time is the time during which an employee, in accordance with internal labor regulations and the terms of the employment contract, must perform job duties

And it turns out that the employee goes on vacation to take a break from working hours, not to fulfill his DI, and it is logical to send the employee on vacation from his working day, but it is a violation of the law if you are sent on vacation from your day off if you work according to shift schedules there won't be, because It is simply impossible to make a calculation that this date in the vacation schedule will be a working date for you.

You understand, you go on vacation for 28 calendar days, and you are paid exactly 28 calendar days, and the fact that you left a working date or a day off for you will not change the number of vacation days and the number of paid vacation days.

And what is also important is that vacation according to the law is provided in calendar days, and not in working days, as was the case before the Labor Code of the Russian Federation came into force. Calendar days are all days in a row, both workdays and weekends.

I explained to you about holidays, they are established by law Article 112 of the Labor Code of the Russian Federation and cannot be provided from a holiday, because Article 120 of the Labor Code of the Russian Federation Non-working holidays falling during the period of annual main or annual additional paid leave are not included in the number of calendar days of leave.

And therefore, providing leave from a holiday is a violation of the law, but from a day off, this is a calendar day, then this is not a violation, but it is more logical if we talk about what working time and rest time are, after all, from a working day, but this more logically, this does not oblige the employer.

14.12.2018

The vacation period, which is due to each employee conducting his professional activities in the organization, is provided to him on the basis of Article 114 of the Labor Code of the Russian Federation.

It's fast and free!

Do they count towards the vacation period?

Unlike calendar holidays holidays, according to Art. 120 Labor Code of the Russian Federation, not included on another paid vacation. If holidays fall within the vacation period, the rest period is extended.

How are they paid?

In accordance with Art. 114 of the Labor Code of the Russian Federation after a specialist goes on vacation, he keep their job and salary.

Important! Money intended to pay for the period of absence from the workplace is accrued not only for weekdays, but also for weekends that a person spends not being in the organization.

The payment calculation scheme for a given period is determined taking into account the time actually worked by the citizen and the average monthly salary received. It includes the tariff rate, salary, incentive and bonus payments, and regional coefficients.

If a person worked for twelve months before the vacation, the accrual of vacation pay will be calculated as follows. First you need to calculate how much the average salary for the previous year is.

For this - the amount of total earnings is divided by 12, and then by 29.3. The result obtained is necessary multiply by the number of rest days, then the amount of payment for vacation will become known.

For a day off, just like for a regular weekday, the average daily wage is assigned.

Can rest begin with non-working days?

The legislation does not define provisions for starting vacation from non-working days, therefore the question of whether it is possible to take annual paid vacation from calendar weekends is decided taking into account their inclusion in the vacation period.

Thus, Article 120 of the Labor Code of the Russian Federation stipulates that weekends are included in vacation, therefore, it can start any day at the request of the employee (upon preliminary drawing up of a vacation plan for the calendar year).

The situation with going on vacation, starting from the day off does not depend on the number of working days in the week and schedule carrying out labor activities.

It should be noted that public holidays are not included in the vacation period, so a person cannot go on vacation on a non-working holiday.

The time provided to the employee annually for rest, includes 28 calendar days, which includes both weekdays and weekends. For each vacation day, the employee receives a payment in the amount of average daily earnings calculated for the last year. It's fast and free!

Vacation is calculated in calendar days; the duration of basic annual leave is 28 days, but this period often includes holidays. These days are indicated in Art. 112 Labor Code of the Russian Federation. There are a total of 15 non-working holidays a year. Let's consider how profitable it is to take vacation during the holidays and whether it is possible to take vacation from the weekend.

The procedure for granting regular leave.

The start date of the next vacation is approved in the vacation schedule. A schedule is developed and agreed upon in December, 14 days before the start of the new year. The employee must be notified by signature no later than two weeks in advance of the start of the vacation. The vacation schedule is mandatory for both the employer and the employee.

In accordance with Art. 120 of the Labor Code of the Russian Federation, vacation time is calculated in calendar days, which includes regular weekends (Saturday and Sunday, with a five-day working week), but does not include non-working holidays.

Features of calculating the duration of the next vacation

To correctly count the days of your next vacation, you should pay attention to a number of nuances:

• A holiday approved by the legislation of the Russian Federation that falls during the regular vacation period is not included in the number of paid days, but the vacation is extended.
• Regional holidays, which are considered days off in the constituent entities of the Russian Federation, are also not included in the number of vacation days; accordingly, the vacation is extended.
• Weekends are taken into account when calculating the duration of rest, since vacation is granted in calendar days.

Let's start our vacation with a holiday

The vacation schedule is sometimes drawn up in such a way that the start date of the annual vacation falls on a non-working holiday or weekend. It should be remembered that non-working holidays are not included in the counted number of calendar days, so choosing the start date for vacation will not be entirely rational. Let's find out whether vacation can start on a day off. It is possible to provide an employee with leave from a holiday or weekend; the legislator does not prohibit this.

Let's consider two situations arising from this:

• Vacation starts on a holiday. In the order we write the date from which the vacation begins according to the vacation schedule. In fact, the vacation will begin the next day after the holiday.
• The start of the holiday fell on a day off. In the order, we also indicate the start date of the vacation according to the schedule. Vacation begins in accordance with the order. The day off from which the vacation begins is included in the days of rest and is taken into account when calculating its duration.

It should be noted that rest for a holiday that coincides with a Saturday or Sunday weekend is transferred by order of the Government of the Russian Federation to the next working day. If the vacation begins with the usual days off according to the work schedule, then you may get the feeling that these days are “lost,” but this is not entirely true. The actual duration of rest is reduced, but vacation pay is accrued, and the days are considered part of the paid rest time.

Accrual of vacation pay for holidays and weekends

Regular days off included in calendar vacation days are paid in accordance with the employee’s average earnings. At the same time, although federal non-working holidays increase the vacation period, no payment is made for them.

In a specific example it looks like this.
The employee's vacation begins on March 4 and lasts 20 days. Since this period includes the national holiday of March 8, which is a non-working day, you will have to go to work not on March 24, but on March 25. But only if this year March 8 falls on a weekday.

If it is Saturday or Sunday, then the holiday is moved to Monday, and the employee starts working again on the 24th. And regardless of what day of the week the holiday is, vacation pay will be paid for 20 days, since a holiday non-working day is not included in the calculation of vacation pay.

The vacation schedule is not always drawn up taking into account the employee’s opinion. Therefore, you can go on your next vacation in January or May, when there are many holidays. Employees often worry whether they will lose wages when holidays fall on vacation and whether they can take time off from a day off. Holidays, although not paid, must still be provided to the employee. Therefore, the number of holidays falling during the vacation period automatically extends it. Payment for vacation is also accrued in full. In this sense, the employee does not receive any benefit.

How to issue an order if holidays fall within the vacation period?

There are several nuances that some smart workers take advantage of. They plan to start their vacation on the weekend. It turns out that 28 days begin on Saturday, counting down 4 weeks. It turns out that the vacation ended on Friday, so there are still 2 days off ahead, so we get a continuous 30 days of rest.

According to the Labor Code, vacation can be divided into parts. A prerequisite is the fact that one of such parts should not be less than fourteen days. The rest can be distributed at your own discretion, including one day at a time. If an employee has accumulated a significant number of unused vacation days, then they can be issued for Saturdays and Sundays, if, for example, the employee himself wishes. This is financially beneficial, since vacation pay is paid and wages are calculated in full.

The lawyer will answer your questions in the comments to the article

An HR employee is faced with questions about granting vacations almost every day. However, each organization has its own characteristics, and in connection with this, non-standard situations arise in granting leave to individual employees.

Providing labor leave starting from a day off is not prohibited

In some cases, for personal reasons, the employee requests that the vacation start on a day off. In this regard, the question arises about the possibility of providing the employee with such leave. Let us immediately note that the labor legislation of the Republic of Belarus does not contain any prohibitions on starting vacation on a day off. An employee has the right to labor and social leave if there are grounds provided for by law (Article 149 of the Labor Code of the Republic of Belarus (hereinafter referred to as the Labor Code)). The duration of vacations is calculated in calendar days, i.e. including the duration of holidays on weekends in the calculation. This is the main condition for calculating vacations provided to employees (part one of Article 151 of the Labor Code).

The only peculiarity in their calculation concerns the provision of vacations, the period of which falls on public holidays and public holidays. The legislation provides that public holidays and holidays falling during the period of labor leave are not included in the number of calendar days of vacation and are not paid (part two of Article 151 of the Labor Code).

The priority of granting labor leave is established for employees by the labor leave schedule, approved by the employer in agreement with the trade union or by the employer in agreement with the employee in the absence of a trade union. This schedule is drawn up for the calendar year no later than January 5 or another date provided for by the collective bargaining agreement, agreement or agreed upon by the employer with the trade union, and is brought to the attention of all employees.

Thus, the start date of labor leave is determined by agreement between the employee and the employer and may coincide with a day off. If an employee is not included in the vacation schedule (for example, he is hired after his approval), the start date of the vacation is also set by agreement between the employer and the employee.

Providing an employee with leave for the next working year

The employer is obliged to provide the employee with labor leave, as a rule, during each working year (annually) (part one of Article 170 of the Labor Code). It must be remembered that the working year for which labor leave is granted is a period of time equal in length to a calendar year, but calculated for each employee from the date of hiring (Article 163 of the Labor Code).

According to the law, labor leaves (main and additional) for the second and subsequent working years are granted at any time of the working year in accordance with the order of granting labor leaves, unless otherwise provided by the Labor Code. Thus, the current labor legislation does not contain a rule on the possibility of granting labor leave for a working year that has not yet begun.

Despite the fact that, in accordance with the law, collective agreements, agreements and other local normative legal acts are sources of regulation of labor and related relations, they cannot resolve this issue, since they must be adopted in accordance with the current legislation, which has such a right the employee is not provided (clause 3 of the first part of Article 7 of the Labor Code).

Thus, the employer does not have the right to provide the employee with labor leave on account of the working year that has not yet begun.

The timing of payments before going on social leave has not been established

Labor legislation establishes the employer's obligation to pay average earnings during the period of labor leave. The deadlines for the payment of average earnings during social leave, maintained and paid in cases established by law, collective and labor agreements, are not regulated. Labor legislation provides for preliminary (before the start of the vacation) payment of earnings saved during the labor vacation.

The effect of these norms is aimed at protecting the interests of the employee and is the responsibility of the employer. If they are not fulfilled, the employee has the right to demand a postponement of vacation. We believe that the period for payment of average earnings during social leave can be regulated by local regulatory legal acts of the organization.

When an employee is transferred from one separate structural unit of the organization to another, monetary compensation for unused labor leave is not made.

Part of the labor leave (main and additional) exceeding 21 calendar days, by agreement between the employee and the employer, can be replaced by monetary compensation (part one of Article 161 of the Labor Code). Replacement with monetary compensation of leaves provided in advance to pregnant women, employees recognized as disabled, persons under 18 years of age and employees for work in areas of radioactive contamination as a result of the disaster at the Chernobyl nuclear power plant, as well as additional leaves for work under harmful and (or) dangerous working conditions and for the special nature of the work is not allowed (part two of Article 161 of the Labor Code).

Cash compensation for unused labor leave (part of labor leave) is paid upon dismissal of an employee (Article 179 of the Labor Code). In addition, the unused part of the vacation resulting from recall from vacation can be compensated in cash by agreement between the employee and the employer (part three of Article 174 of the Labor Code). The legislation does not provide for other cases of payment of compensation for unused labor leave. Thus, transfer to another separate structural unit of the organization, in the author’s opinion, does not imply payment of compensation for unused labor leave (part of it).

A holiday that is officially a day off is not included in the calculation of the duration of labor leave.

The number of calendar days of vacation does not include and does not pay for public holidays and public holidays falling within a given period (part two of Article 151 of the Labor Code). Regardless of the organization’s work schedule, the requirements of this norm apply to all cases when a holiday falls during a vacation. Since in part two of Art. 151 of the Labor Code does not talk about measuring vacations, but about calculating their duration; if non-working holidays fell during this period, it would be incorrect to indicate an extension of labor leave.

A comprehensive list of grounds for postponing or extending labor leave is specified in the Labor Code. The case of a holiday falling during the period of labor leave is not included in it (part one of Article 171 of the Labor Code).

Example The employee was granted 24 days leave from January 2, 2012. Therefore, the period of labor leave should expire on January 25. During the holiday period, Christmas (Orthodox Christmas) falls on January 7th. This day is a national holiday and, in accordance with clause 3 of the Decree of the President of the Republic of Belarus dated March 26, 1998 No. 157 “On public holidays, public holidays and memorable dates in the Republic of Belarus,” is declared a non-working day. January 7, 2012 simultaneously falls on a non-working day for organizations with a 5-day work week and days off on Saturday and Sunday.

In this regard, this day is not included in the number of calendar days of vacation, and the duration of vacation is not increased. But since January 7 is a holiday and this day is officially declared a non-working day, the first working day after the vacation will be January 27, not January 26. At the same time, it is incorrect to indicate that the labor leave is extended, since January 7 is not included in the number of calendar days of vacation and is not paid .

If a holiday that is officially declared a day off falls during a labor vacation, it is not included in the number of calendar days of labor vacation.

In this case, the employee is on vacation during the time for which he was granted labor leave, and during the holiday, which is a non-working day if it fell during the vacation period.

Ruslan Dashkevich, labor economist

In order to extend their rest, many workers try to take vacation immediately before or immediately after non-working holidays. This raises a logical question: are holidays included in vacation? If non-working holidays occur during the employee’s vacation period, then they are not included in the number of vacation days and, as a result, are not paid (Article 120 of the Labor Code of the Russian Federation). This rule applies to both.

Non-working holidays in Russia are (Article 112 of the Labor Code of the Russian Federation):

• January 1, 2, 3, 4, 5, 6, 8 - New Year holidays;
• January 7 - Christmas;
• February 23 - Defender of the Fatherland Day;
• March 8 - International Women's Day;
• May 1 - Spring and Labor Day;
• May 9 - Victory Day;
• June 12 - Russia Day;
• November 4 is National Unity Day.

Also, at the level of constituent entities of the Russian Federation, religious holidays can be recognized as non-working holidays (Clause 7, Article 4 of Law No. 125-FZ of September 26, 1997)

Do weekends count as vacation?

Do weekends count as vacation? Yes, in the number of vacation days provided in calendar days, weekends along with working days are included and subject to payment (Article 120 of the Labor Code of the Russian Federation).

As a general rule, if a non-working holiday falls on a weekend, then the working day following it becomes a day off (Article 112 of the Labor Code of the Russian Federation). This also applies to religious “regional” holidays (Section 2 of the Rostrud Recommendations, approved by Protocol No. 1, dated 06/02/2014). An exception is provided for January holidays.

In addition, the Government of the Russian Federation, if weekends and non-working holidays coincide, has the right to transfer weekends to other days during the calendar year. Traditionally, once a year the Government issues a corresponding resolution on the transfer of days off (see, Decree of the Government of the Russian Federation of October 14, 2017 N 1250).

Thus, not only holidays, but also weekends postponed in connection with the holiday may fall on vacation. The latter are included in the vacation.

Calculation of the number of vacation days: example

Let's look at an example of how the number of vacation days is calculated if the vacation falls on a holiday.

Example. Sales Manager Nepenina N.V. I wrote an application for leave from February 19, 2018 for 14 calendar days. February 23 is a non-working holiday (Article 112 of the Labor Code of the Russian Federation). This day is not taken into account in the employee’s vacation. As a result, Nepenina N.V. must return to work after vacation on March 6.

Keep in mind that things are different in a situation where an employee in his application indicates not the number of calendar days of vacation, but specific dates (an example can be found in another).

Can vacation begin on a public holiday?

It happens that the first day of an employee’s vacation falls on a non-working holiday. At least this is how the employee’s statement can be written. Is this acceptable? Quite. The Labor Code of the Russian Federation does not prohibit specifying a holiday as the first day of vacation. Another thing is that in such a situation the employer “skips” this day and starts counting vacation days from the next calendar day.

“Vacation” holidays when calculating average earnings

As a general rule, vacation payments are calculated based on the employee’s average earnings (Article 139 of the Labor Code of the Russian Federation, clause 2, 10 of the Regulations, approved by Decree of the Government of the Russian Federation of December 24, 2007 N 922). If the previous vacation included a holiday, should it be excluded from the calculation period when determining vacation pay?

Although the time when the employee retained his average earnings should be excluded from the calculation period, i.e. vacation days (clause “a”, paragraph 5 of the Regulations, approved by Decree of the Government of the Russian Federation of December 24, 2007 N 922), non-working holidays in vacation periods are not included. In other words, holidays are not excluded times. Therefore, when calculating average earnings, such non-working holidays should be taken into account (Letter of the Ministry of Labor of Russia dated April 15, 2016 N 14-1/B-351).

Additional payment for holidays to piece workers

Employees who work on a piece-rate basis are paid additional remuneration for non-working holidays on which they were not involved in work. The procedure for its payment and the amount are established by the organization’s collective agreement, agreement or local regulation (Article 112 of the Labor Code of the Russian Federation).

The average earnings, on the basis of which vacation pay is calculated, are determined based on all payments provided for by the employer’s remuneration system (clause 2 of the Regulations, approved by Decree of the Government of the Russian Federation of December 24, 2007 N 922). Specifically, additional remuneration for holidays is not mentioned in the list of “labor” payments in favor of employees. But since this list is open (clause “o”, paragraph 2 of the Regulations, approved by Decree of the Government of the Russian Federation of December 24, 2007 N 922), this remuneration must also be taken into account when calculating the average earnings for piece workers.

Weekends and holidays during unpaid leave

The period of unpaid leave may also include weekends and/or public holidays. But they do not affect the duration of the vacation in any way. If the employee has written an application for leave without pay indicating specific dates, and the employer is not against granting it, then the corresponding order must indicate the same dates of leave. If an employee has written an application from a certain date for a certain number of calendar days, then to determine a specific vacation period, the required number of calendar days is counted from the first day of vacation.

All days of leave without pay, including weekends and non-working holidays, in the work time sheet (form N T-12 or form N T-13, approved by Resolution of the State Statistics Committee of the Russian Federation dated 01/05/2004 N 1) are marked with the letter code “NV” or digital code "28".

Example.

Sales Manager Nepenina N.V. I wrote an application for leave without pay from February 19 to February 25, 2018. For the specified period (7 calendar days), the employee must be granted leave. The first working day after vacation for her is February 26 of the year.

If she had written an application from February 19, 2018 for 7 calendar days, then she would have been granted leave without pay for the period from February 19 to February 25 (7 calendar days). And the first working day would remain the same. despite the fact that this period falls on a holiday - February 23.