For some, the coming winter is a harbinger of the upcoming New Year holidays, and for many students it is a reminder of the winter session.
And if so, then the accountant will not be left without work - employees go on study holidays and they need to be properly drawn up and calculated.
Guarantees and compensations for employees who combine work with training are provided for by Chapter 26 of the Labor Code of the Russian Federation.
Such guarantees and compensations include:
- provision of additional paid leave and leave without pay,
- payment for travel to the place of study,
- shortening the working day or working week.
What kind of compensation and guarantees to provide to an employee who combines work with education depends not only on the type of education received:
- average general,
- primary vocational,
- secondary vocational,
- higher professional,
- professional development after graduation,
At the same time, it should be taken into account that mandatory guarantees and compensations are provided only to those employees who combine work with education in educational institutions that have state accreditation in accordance with the legislation of the Russian Federation.
The presence of state accreditation is confirmed by a call certificate. It should indicate:
- registration number,
- date of issue,
- full name of the body that issued the certificate of state accreditation.
- collective agreement,
- or an employment contract.
Guarantees provided for by the provisions of the Labor Code of the Russian Federation
Guarantees and compensations for employees receiving higher education* are provided in accordance with the provisions of Article 173 of the Labor Code of the Russian Federation.Employees studying in higher education institutions oncorrespondence and part-time (evening) forms of training, the company must provide additional holidays:
- for 1 and 2 courses, respectively - 40 calendar days each,
- on each of the subsequent courses, respectively - 50 calendar days (when studying as an external student, on the 2nd course - 50 calendar days);
- up to 4 months in accordance with the curriculum.
- Employees admitted to the entrance exams:
- 15 calendar days.
- Employees - students of the preparatory departments of educational organizations of higher education for the final certification:
- 15 calendar days;
- Employees studying in higher educational institutions full-time form of education that combines education with work:
- To pass the intermediate certification:
- 15 calendar days in an academic year.
- To prepare and defend the final qualifying work and pass the final state exams:
- 4 months.
- To pass the final state exams:
- 1 month.
Employees who successfully graduate education by correspondence and part-time (evening) forms of education for a period of up to 10 academic months before the start of the state final certification:
- at their request, a working week is set, reduced by 7 hours.
By agreement of the parties to the employment contract, the reduction of working time is carried out by providing the employee with one day off from work per week or by reducing the length of the working day during the week.
In accordance with the provisions of Article 173.1 (this article was introduced by the Federal Law of July 2, 2013 No. 185-FZ), employees mastering the programs:
- training of scientific and pedagogical staff in graduate school (adjuncture),
- residency,
- internship assistants,
- Annual additional leave at the place of work lasting 30 calendar days with the preservation of average earnings.
- One free day from work per week with payment in the amount of 50% of the salary received.
In addition, the above employees, as well as employees who are applicants for a PhD degree, also have the right to:
- to provide them at the place of work additional annual leave duration 3 months to complete a dissertation for the degree of candidate of sciences while maintaining average earnings.
*In educational institutions with state accreditation.
Employees successfully mastering secondary vocational education part-time and part-time (evening) forms of training, the employer provides additional leave maintaining average earnings:
- To pass the intermediate certification:
- on 1 and 2 courses for 30 calendar days,
- on each of the subsequent courses - 40 calendar days.
- To pass the state final certification:
- up to 2 months (according to the curriculum).
Without pay, it is mandatory to provide leave to employees:
- Admitted to entrance examinations:
- 10 calendar days
- Combining secondary vocational education full-time form of training with work:
- for passing intermediate certification - 10 calendar days per academic year,
- for passing the state final certification - up to 2 months.
- pays for travel to the location of the educational organization and back in the amount of 50% fare.
- Within 10 academic months before the start of the state final certification, the at their request work week shortened by 7 hours.
By agreement of the parties to the employment contract, concluded in writing, the reduction of working time is carried out by:
- providing an employee with 1 day off from work per week,
- or reducing the length of the working day (shift) during the week.
In accordance with the provisions of Article 176 of the Labor Code of the Russian Federation, employees who successfully study under the programs of basic general or secondary general education * part-time (evening) form of education, additional leave while maintaining average earnings d To pass the state final certification:
- according to the educational program main general education for a period of 9 calendar days,
- according to the educational program middle general education for a period of 22 calendar days.
For such employees during the academic year, at their request working week shortened:
- for 1 working day,
- or for the number of working hours corresponding to it (with a reduction in the working day / shift during the week).
The procedure for providing guarantees and compensations to employees who combine work with education is regulated by the provisions of Article 177 of the Labor Code of the Russian Federation.
Guarantees and compensations for employees who combine work with education are provided upon receipt of education of the appropriate level first.
The specified guarantees and compensations are also may be provided to employees who already have a vocational education of the appropriate level and are sent to receive education employer in accordance with the provisions:
- employment contract,
- or student agreement
Accordingly, the above guarantees and compensations do not apply to employees who receive 2nd higher education on their own initiative.
According to paragraph 8 of Article 69 of the Federal Law of December 29, 2012 No. 273-FZ “On Education in the Russian Federation”, education at the expense of the budgetary allocations of the federal budget, the budgets of the constituent entities of the Russian Federation and local budgets is getting a second or subsequent higher education in the following educational programs of higher education:
- For bachelor's or specialist's programs - by persons who have a bachelor's degree, a specialist's degree or a master's degree.
- For master's programs - by persons with a specialist diploma or a master's degree.
- For residency programs or assistantship-internship programs - by persons who have a diploma of completion of residency or a diploma of completion of assistantship-internship.
- According to the training programs for scientific and pedagogical personnel - by persons who have a postgraduate diploma (adjuncture) or a candidate of science diploma.
- is not getting a second or subsequent secondary vocational education again.
An employee who combines work with education at the same time in two organizations engaged in educational activities, guarantees and compensations are provided only in connection with education in one of these organizations (at the choice of the employee).
Forms of a certificate-call giving the right to provide guarantees and compensations to employees are approved:
- Order of the Ministry of Education of the Russian Federation of May 13, 2003 No. No. 2057 (for higher educational institutions).
- Order of the Ministry of Education of the Russian Federation of December 17, 2002 No. No. 4426 (for secondary specialized educational institutions).
The procedure for registration and calculation of study holidays
To receive study leave, an employee must write an application and attach to it a certificate-call from an educational institution.Based on these documents, the company issues an order to grant study leave to the employee.
After the session ends, the employee must submit a confirmation certificate. This is a detachable part of the certificate-call, confirming that the employee was really at the session on the specified dates.
In the case when study leave is provided with pay, it is necessary to fill out a Note-calculation on the provision of leave and calculate vacation pay.
We remind you that in accordance with the provisions of paragraph 4 of Article 136 of the Labor Code of the Russian Federation, vacation payment is made no later than 3 days before it starts. These requirements apply not only to regular vacations, but also to paid training.
It must be remembered that study leave, unlike the annual basic paid leave, is not an employee's rest time. Accordingly, the replacement of study leave with monetary compensation is not allowed.
According to the provisions of Article 139 of the Labor Code of the Russian Federation, the average daily earnings for vacation pay are calculated for the last 12 calendar months by dividing the amount of accrued wages by 12 and by 29.4 (average monthly number of calendar days).
Calculation of average earnings for payment of study leave is carried out in accordance with the Decree of the Government of the Russian Federation of December 24, 2007 No. No. 922 "On the peculiarities of the procedure for calculating the average wage."
In accordance with clause 14 of Decree No. 922, when determining the average earnings for paying for additional study holidays, payment is subject to all calendar days(including non-working holidays) falling on the period of such holidays provided in accordance with the certificate-call of the educational institution.
According to paragraph 8 of the Decree of the Government of the Russian Federation of 18.01.1992. No. 33 "On additional measures for the social protection of student youth", employees studying evening and part-time forms of education in higher and secondary specialized educational institutions, the average earnings to pay for additional vacations related to education are calculated in the manner prescribed for annual holidays.
That is, study holidays are calculated in the same way as annual paid holidays according to the following formula:
Formula for determining average earnings when calculating vacation pay |
|
1. The previous 12 months have been fully worked out by the employee. “Vacation day price” will be = The amount of payments taken into account to calculate the average earnings for 12 months / 12 * 29.4. |
|
2. The previous 12 months have not been fully worked out by the employee. "Price of the day" will be = The amount of payments taken into account to calculate the average earnings /( X*29,4 + At*29,4/FROM). |
| Where: X - the number of months worked in full. At - amount spent calendar days in the month (months) worked (worked out) not completely. FROM - the total number of calendar days in the month (months) for each month (months) not fully worked. |
You can read more about the procedure for calculating vacations in the article.
If an employee is studying, then at his request, the employer is obliged to provide him with study leave. However, do not rush to pay. Perhaps the employee is entitled to only unpaid leave.
Many companies have employees who combine work with training. In accordance with the law, these employees are entitled to study leave. You will not find the term "study leave" in the Labor Code. It deals with additional holidays with the preservation of average earnings and holidays without pay for employees who combine work with education, and employees entering training. However, it is common to call study leave all those holidays that are provided to employees for various purposes related to education. Such holidays are established by Chapter 26 of the Labor Code.
So, study leave can be:
- paid (additional leave with the preservation of average earnings);
- unpaid (vacation without pay).
Who is eligible for study leave?
According to the provisions of the Labor Code *(1), study holidays are granted to those employees who receive a certain level of education. The right to paid study leave arises under the following conditions:
- the employee learns successfully;
- the educational institution has state accreditation;
- the employee receives education of this level for the first time.
Let us consider separately each of these conditions, as well as the difficulties that arise in their implementation.
Studying successfully. The Labor Code does not disclose the content of the concept of "successful mastering of the educational program". Usually, speaking about the success of training, they mean the absence of debts in subjects or “failures” in the grade book. In any case, the implementation of current monitoring of students' progress is within the competence of the educational institution. Therefore, the success of training is confirmed by a certificate-call, and the requirement to provide a record book or other documents on academic performance on the part of the employer is unlawful.
State accreditation. Of course, employees who combine work with education in educational programs that have state accreditation have the right to study leave.
But there is an exception. Educational leave (paid or unpaid) can also be granted to those who study in educational institutions that do not have state accreditation. To do this, this condition must be written in the labor or collective agreement * (2). If the employer has sent the employee to such off-duty training, the employee is provided with guarantees and compensations provided for by the Labor Code *(3).
Requirement to receive education for the first time. If an employee is studying at a technical school, college or institute for the first time, then there are no questions. But there are cases, although at first glance not so obvious, when the education received is also considered the first.
For example, if an employee has previously received an education of the appropriate level, but did not complete the training, that is, did not receive a diploma, then the education he is currently receiving at the same level for the purpose of granting study leave is considered the first.
Another option: if an employee received a higher education immediately after graduation, then studying in educational programs of secondary vocational education is considered to be receiving an education of the appropriate level for the first time.
Also, if an employee who has a diploma of secondary vocational education with the qualification of a skilled worker (employee) studies under the training programs for mid-level specialists, then this is not a second or subsequent secondary vocational education.
Please note that studying in the magistracy of an employee with a bachelor's degree will not be a second higher education. Therefore, such an employee can take advantage of the guarantees provided for by labor legislation.
The only exception when study leave (both paid and unpaid) can be granted to an employee who already has a vocational education of the appropriate level is the direction for training by the employer in accordance with an employment contract or a student agreement concluded in writing * (4) .
Non-core training
If the specialty in which the employee is studying is non-core for the company, the employer does not have the right to refuse to grant study leave to the employee, since the Labor Code does not link the provision of study leave with the specialty that the student receives. If the employee is sent for training by the employer in a certain specialty, then the transition to another specialty is not possible.
If a part-time student is studying
Part-time students are not granted study leave. The right to study leave arises only at the main place of work * (5). In relation to part-time work, such an employee, on the basis of his application, may be granted ordinary leave without pay * (6). If an employee studies at the same time in two organizations that carry out educational activities, then leave is due in connection with training in only one of these organizations at the choice of the employee * (7).
When is study leave paid?
Employees who study part-time or in the evenings under state-accredited bachelor's, specialist's, master's, secondary vocational education programs are entitled to paid study holidays * (8). Paid study holidays are provided in calendar days.
- Higher education (academy, university, institute) Bachelor's degree, specialist's degree, master's degree. Correspondence, part-time (evening) form of education Intermediate certification (session) for the first and second years 40 calendar days
- Intermediate certification in the third and subsequent courses 50 calendar days
- Mastering the program in a shortened time frame in the second year 50 calendar days
- Final certification (passing state exams, preparing and defending a diploma) Up to 4 months in accordance with the curriculum
- Postgraduate (adjuncture). Distance learning Education Annually 30 calendar days + time spent on travel from the place of work to the place of study and back
- Completion of the dissertation for the degree of Candidate of Sciences 3 months
- Residency, assistantship - internship. Distance learning Education Annually 30 calendar days + time spent on travel from the place of work to the place of study and back
- Applicants for the degree of Candidate of Science Completion of the dissertation for the degree of Candidate of Science 3 months
- Secondary professional (technical school, college) Correspondence, part-time (evening) form of education
- Intermediate certification (session) for the first and second courses 30 calendar days
- Intermediate certification in the third and subsequent courses 40 calendar days
- Final certification (passing state exams, preparing and defending a diploma) Up to 2 months in accordance with the curriculum
- Basic general (evening school) Part-time (evening) form of education Final certification (final exams after grade IX) 9 calendar days
- Secondary general (evening school) Part-time (evening) form of education Final certification (final exams after XI (XII) class) 22 calendar days
Study leave payment procedure
For the period of paid study leave, the employee retains the average earnings. It is calculated in the manner prescribed for the payment of vacations provided in calendar days. Average earnings are paid for all calendar days, including holidays, falling on the period of study leave provided in accordance with the call certificate. Study leave must be paid no later than three days before its start*(10). Please note that crediting study leave after the end of the session and providing the employer with a confirmation certificate is illegal. For violation of the deadline for paying vacation pay, the employer is liable * (11). It does not matter whether the employer is to blame for the delay in payment or not.
Important! There have been changes in the provision of educational paid holidays to employees who combine work with education in educational institutions of higher and secondary vocational education. Additional leave with the preservation of average earnings for passing the final state exams with a duration of 1 month from September 1, 2013 is not provided * (12).
The consequences of not providing a confirmation certificate or presenting such a document in which violations are noted (in particular, failure to appear for exams) are not directly defined by labor legislation.
Having identified the misuse of study leave, the employer may require the employee to voluntarily return vacation pay. At the same time, if the employee refuses to fulfill this requirement, it is impossible to deduct vacation pay from wages, since the Labor Code does not provide for such a basis for deduction * (13). The employer can apply to the court with a claim for the recovery of the overpaid amount, but given the lack of direct provisions in the law, it is problematic to predict the outcome of the trial.
Do not forget that the provision of guarantees and compensations to employees who combine work with training is the obligation of the employer, and not the right. Therefore, in case of non-fulfilment, the employee can apply to the state labor inspectorate, which, in turn, can present mandatory instructions to violators of labor rights to eliminate violations of labor legislation * (14). In addition, the inspection has the right to bring the perpetrators to administrative responsibility * (15).
Important! School students who receive initial vocational education are no longer entitled to paid leave to take exams for 30 calendar days within one year, regardless of the form of study - full-time, part-time or evening * (16).
When study leave is not paid
In addition to paid leave, a student employee has the right to additionally take study leave at his own expense. Study leave without saving average earnings is also provided in calendar days. The duration of such holidays depends on their purpose and level of education.
Duration of unpaid study leave depending on the type of education
- Type of education Purpose of leave Duration of unpaid study leave
- Higher (bachelor's, specialist's, master's) Entrance examinations (exams) 15 calendar days
- Final certification (exams) at the preparatory department 15 calendar days
- Intermediate certification (session) at the full-time department (full-time education) 15 calendar days in the academic year
- Preparation and defense of the final qualifying work, passing state exams (full-time education) 4 months
- Passing state exams (full-time education) 1 month
- Secondary professional (technical school, college) Entrance examinations (correspondence, part-time and full-time forms) 10 calendar days
- Intermediate certification (full-time education) 10 calendar days per academic year
- Final certification (full-time education) Up to 2 months
The law establishes not only the conditions for granting study holidays, but also their guaranteed duration. If the employment contract with the employee specifies a smaller number of days of study leave or includes a condition that the employee refuses to use study leave or pay for it, then this condition of the employment contract will not apply * (17).
Conversely, it is not forbidden to improve the position of workers in comparison with labor legislation. Therefore, in the collective agreement or in the employment contract, it is possible to provide for additional cases of granting study holidays, increasing their duration or granting leave with pay instead of leave without pay * (18).
At the same time, it should be noted that the provision of study leave is one of the guarantees for employees who combine work with study. That is, the employee can use this guarantee in full or refuse it or use it partially. To do this, in addition to the certificate-call, the employee must submit an application indicating from what date and for how long he asks to be granted study leave. The dates of the requested study leave must not exceed the period specified in the call certificate. Then wages should be paid for the hours worked, and average earnings for the actually used vacation days. The fact that the partial provision of educational leave within the period specified in the call certificate does not contradict labor legislation is also confirmed by judicial practice * (19). Although Rostrud has a different point of view on this issue * (20). Granting a study leave of a shorter duration than that specified in the call certificate, even if the employee requests it, will not fully comply with the requirements of the current legislation, since the study leave has a strictly designated purpose and should be used only in deadlines.
Documents for registration of study leave
The basis for granting study leave is a certificate-call * (21). Two forms of certificate-call are approved: for those receiving higher education * (22) and secondary vocational * (23). The reference-call for a higher educational institution will also differ depending on what kind of vacation is provided - paid or not.
For other cases of granting educational leave, the call-inquiry forms are not approved. There is also no approved certificate form for a program that does not have state accreditation. But if the employee is granted study leave in accordance with a collective or employment agreement, such a certificate is issued in an arbitrary form. The only requirement for such a certificate is that it must reflect the purpose and timing of the study leave.
The employee is not required to bring a copy of the state accreditation certificate. This information is contained in the help call.
The second part of the certificate is filled in by the educational institution and certified with a seal after the study leave. It is a confirmation that the employee used the study leave for its intended purpose, namely: he really was in the educational institution that issued him the specified call certificate. The employer gives this part to the employee upon receipt of a certificate-call from him before the vacation, and the employee returns it when he returns to work from study leave.
If the employee provides only a certificate-call, then he needs to issue a study leave in accordance with it. The employer does not have the right to independently change the dates of the study leave.
Important! It is not possible to replace study leave with monetary compensation, as well as work while on study leave. If the employee actually worked during the study leave, he is entitled to wages for the days worked, and the average earnings received by the employee as vacation pay in this case is overpaid.
E. Noskova,
Senior HR Specialist
BDO Unicon Outsourcing
*(1) Art. 173-176 of the Labor Code of the Russian Federation
*(2) Art. 173, 174 of the Labor Code of the Russian Federation
*(3) Art. 187 Labor Code of the Russian Federation
*(4) Art. 177 Labor Code of the Russian Federation
*(5) Art. 287 of the Labor Code of the Russian Federation
*(6) Art. 128 Labor Code of the Russian Federation
*(7) Art. 177 Labor Code of the Russian Federation
*(8) Art. 173, 174 of the Labor Code of the Russian Federation
*(9) Art. 173-176 of the Labor Code of the Russian Federation
*(10) Art. 136 Labor Code of the Russian Federation
*(11) art. 236 of the Labor Code of the Russian Federation
*(12) sub. "b" p. 18, sub. "b" clause 20 of the Federal Law of July 2, 2013 N 185-FZ (hereinafter - Law N 185-FZ)
*(13) art. 137 of the Labor Code of the Russian Federation
*(14) Art. 357 of the Labor Code of the Russian Federation
*(15) Art. 5.27 of the Code of Administrative Offenses of the Russian Federation
*(16) clause 21 of Law N 185-FZ
* (17) Part 2 Art. 9 of the Labor Code of the Russian Federation
*(18) art. 9, 41, 57 of the Labor Code of the Russian Federation
*(19) definitions of the Trans-Baikal Regional Court dated March 21, 2012 N 33-835/2012, Vologda Regional Court dated September 28, 2011 N 33-4454/2011
* (20) letter of Rostrud dated 12.09.2013 N 697-6-1
*(21) art. 177 Labor Code of the Russian Federation
* (22) order of the Ministry of Education of Russia dated 13.05.2003 N 2057
* (23) order of the Ministry of Education of Russia dated 12/17/2002 N 4426
Employees are granted annual leave while maintaining their place of work (position) and average earnings.
Article 115. Duration of the annual basic paid leave
Annual basic paid leave is granted to employees for a duration of 28 calendar days.
Annual basic paid leave lasting more than 28 calendar days (extended main leave) is granted to employees in accordance with this Code and other federal laws.
Article 116. Annual additional paid holidays
Annual additional paid leave is granted to employees employed in jobs with harmful and (or) dangerous working conditions, employees with a special nature of work, employees with irregular working hours, employees working in the Far North and equivalent areas, as well as in other cases provided for by this Code and other federal laws.
Employers, taking into account their production and financial capabilities, may independently establish additional holidays for employees, unless otherwise provided by this Code and other federal laws. The procedure and conditions for granting these holidays are determined by collective agreements or local regulations, which are adopted taking into account the opinion of the elected body of the primary trade union organization.
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
Article 117
Annual additional paid leave is granted to employees engaged in work with harmful and (or) dangerous working conditions: in underground mining and open pit mining in open pits and quarries, in areas of radioactive contamination, in other jobs associated with adverse effects on human health of harmful physical, chemical, biological and other factors.
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
The minimum duration of the annual additional paid leave for employees employed in jobs with harmful and (or) dangerous working conditions, and the conditions for granting it, are established in the manner determined by the Government of the Russian Federation, taking into account the opinion of the Russian tripartite commission for the regulation of social and labor relations.
Article 118. Annual additional paid leave for the special nature of work
The list of categories of employees who are entitled to additional annual paid leave for the special nature of their work, as well as the minimum duration of this leave and the conditions for granting it, are determined by the Government of the Russian Federation.
Article 119. Annual additional paid leave for employees with irregular working hours
Employees with irregular working hours are granted annual additional paid leave, the duration of which is determined by the collective agreement or internal labor regulations and which cannot be less than three calendar days.
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
The procedure and conditions for granting annual additional paid leave to employees with irregular working hours in organizations financed from the federal budget are established by the Government of the Russian Federation, in organizations financed from the budget of a constituent entity of the Russian Federation - by the authorities of the constituent entity of the Russian Federation, and in organizations financed from the local budget, local governments.
Article 120. Calculation of the duration of annual paid holidays
The duration of the annual basic and additional paid holidays of employees is calculated in calendar days and is not limited to a maximum limit. Non-working holidays falling within the period of the annual basic or annual additional paid leave shall not be included in the number of calendar days of leave.
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
When calculating the total duration of annual paid leave, additional paid leaves are added to the annual basic paid leave.
Article 121
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
The length of service giving 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, the place of work (position) was retained, including the time of the annual paid leave, non-working holidays, days off and other days of rest provided to the employee;
time of forced absenteeism in case of illegal dismissal or removal from work and subsequent reinstatement at 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;
time of unpaid leave granted at the request of the employee, not exceeding 14 calendar days during the working year.
(paragraph introduced by Federal Law No. 157-FZ of July 22, 2008)
(part one as amended by Federal Law No. 90-FZ of 30.06.2006)
The length of service giving the right to annual basic paid leave does not include:
the time of the employee's absence from work without good reason, including as a result of his suspension from work in the cases provided for in Article 76 of this Code;
the time of leave to care for a child until he reaches the age established by law;
paragraph is invalid. - Federal Law of July 22, 2008 N 157-FZ.
The length of service, which gives the right to additional annual paid leave for work with harmful and (or) dangerous working conditions, includes only the time actually worked in the relevant conditions.
Article 122. Procedure for granting annual paid holidays
Paid leave must be granted to the employee annually.
The right to use the leave for the first year of work arises for the employee after six months of his continuous work with this employer. By agreement of the parties, an employee may be granted paid leave before the expiration of six months.
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
Before the expiration of six months of continuous work, paid leave at the request of the employee must be granted:
women - before maternity leave or immediately after it;
employees under the age of eighteen;
employees who have adopted a child (children) under the age of three months;
in other cases stipulated by federal laws.
Leave for the second and subsequent years of work may be granted at any time of the working year in accordance with the order of granting annual paid leaves established by the employer.
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
Article 123
The sequence of granting paid holidays 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 in the manner established by Article 372 of this Code for the adoption of local regulations.
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
The vacation schedule is mandatory for both the employer and the employee.
The employee must be notified against signature of the start time of the vacation no later than two weeks before the start of the vacation.
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
Certain categories of employees, in the cases provided for by this Code and other federal laws, are granted annual paid leave at their request at a time convenient for them. At the request of the husband, annual leave is granted to him during the period when his wife is on maternity leave, regardless of the time of his continuous work with this employer.
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
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:
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
temporary disability of an employee;
performance by the employee during the annual paid leave of state duties, if the labor legislation provides for exemption from work for this;
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
in other cases provided for by labor legislation, local regulations.
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
If the employee was not timely paid for the annual paid vacation or the employee was warned about the start time of this vacation later than two weeks before it began, 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 June 30, 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 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.
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
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.
Article 125 Review from vacation
By agreement between the employee and the employer, annual paid leave may be divided into parts. At the same time, at least one of the parts of this vacation must be at least 14 calendar days.
Recall of an employee from vacation is allowed only with his consent. The unused part of the vacation in connection with this must be provided at the choice of the employee at a time convenient for him during the current working year or added to the vacation for the next working year.
Employees under the age of eighteen, pregnant women and employees employed in jobs with harmful and (or) dangerous working conditions are not allowed to be recalled from vacation.
Article 126. Replacement of annual paid leave with monetary compensation
(As amended by Federal Law No. 90-FZ dated June 30, 2006)
Part of the annual paid leave, exceeding 28 calendar days, at the written request of the employee may be replaced by monetary compensation.
When summing up annual paid holidays or postponing annual paid holidays to the next working year, a part of each annual paid holiday exceeding 28 calendar days, or any number of days from this part, can be replaced by monetary compensation.
It is not allowed to replace with monetary compensation the annual basic paid leave and annual additional paid leaves for pregnant women and employees under the age of eighteen years, as well as the annual additional paid leave for employees employed in jobs with harmful and (or) dangerous working conditions, for work in appropriate conditions. (except for the payment of monetary compensation for unused vacation upon dismissal).
Article 127. Realization of the right to leave upon dismissal of an employee
Letter No. 2725-6-1 of 09.09.2010 from Rostrud stated that until the entry into force of Convention No. 132 of the International Labor Organization "On Paid Leave", the provisions of this article continue to apply that upon dismissal, the employee is paid monetary compensation for all unused holidays.
Upon dismissal, the employee is paid monetary compensation for all unused vacations.
The employer, in order to properly fulfill the obligation enshrined in the Labor Code of the Russian Federation to formalize the dismissal and pay the dismissed employee, must proceed from the fact that the last day of the employee’s work is not the day of his dismissal (the last day of vacation), but the day preceding the first day of vacation (Definition of the Constitutional Court of the Russian Federation dated January 25, 2007 N 131-О-О).
At the written request of the employee, unused vacations may be granted to him with subsequent dismissal (with the exception of cases of dismissal for guilty actions). In this case, the day of dismissal is considered the last day of vacation.
In the event of dismissal due to the expiration of the term of the employment contract, leave with subsequent dismissal may also be granted when the time of leave completely or partially goes beyond the term of this contract. In this case, the day of dismissal is also considered the last day of vacation.
When granting leave with subsequent dismissal upon termination of the employment contract at the initiative of the employee, this employee has the right to withdraw his application for dismissal before the day the vacation begins, if another employee is not invited to his place in the order of transfer.
Article 128. Leave without pay
For family reasons and other valid reasons, an employee, upon his written application, may be granted unpaid leave, the duration of which is determined by agreement between the employee and the employer.
The employer is obliged, on the basis of a written application of the employee, to grant unpaid leave:
participants of the Great Patriotic War - up to 35 calendar days a year;
working old-age pensioners (by age) - up to 14 calendar days a year;
parents and wives (husbands) of military personnel who died or died as a result of injury, concussion or injury received in the performance of military service duties, or as a result of an illness associated with military service - up to 14 calendar days a year;
working disabled people - up to 60 calendar days a year;
employees in cases of the birth of a child, marriage registration, death of close relatives - up to five calendar days;
in other cases provided for by this Code, other federal laws or a collective agreement.
22.08.2019
A company that employs employees who study full-time, part-time or part-time is obliged to provide them with breaks in work to pass intermediate and final training tests upon a written request with a calling document from the place of study.
Separate articles of Chapter 26 of the Labor Code of the Russian Federation (173, 174, 176) regulate the procedure for granting days off and establish the obligation to pay them.
In what cases are paid days provided?
The employer is not always obliged to provide the employee for the passage of individual training stages. The conditions for mandatory provision with or without payment are prescribed in the labor code. the rest period is also determined by the Labor Code of the Russian Federation.
There are five main conditions under the Labor Code of the Russian Federation, without which an employee will not receive student leave: 
- The education for the student is first (that is, the person has not previously studied in the profession at the same level). An exception is the case when the employer himself sends his employee to receive another education, according to the terms of the student or labor agreement.
- The program, according to which the training is conducted, is accredited at the state level. This fact can be checked on the website of the supervisory service in the field of education.
- The employee has submitted a sufficient package of documents to justify the right to study leave (there must be a call certificate or other similar document confirming the success of the educational process, and a personal statement).
- The place of work is the main one for the applicant (not part-time).
- There is a reason for the requirement of rest for study in the Labor Code of the Russian Federation (you need to rely on Articles 173-177).
Important! The form of study is not a determining factor in the issue of providing days off, however, payment depends on the type of this form. Full-time study leave is not paid. and part-time students can count on paid days off.
Who is not entitled to student holidays?
Study leave is not granted if:
- not submitted a package of documents of employees,
- there is no help call,
- the educational program does not have state accreditation,
- the education received is the second for this level,
- The employee works part-time for the company.
It is sufficient to have one of the indicated grounds for refusing to grant student leave.
However, the company retains the right to include the possibility of a study break in a collective agreement or other LNA, even if the due conditions are not met.
Important! Part-time workers cannot demand study leave from the employer, however, they can declare such a right at their main place of work, and part-time take unpaid days off at their own expense after agreement with the management.
Order and rules of registration
Providing time off for an employee for study is mandatory.
Step 1. Receiving documents from the employee and checking them for correctness.
Step 2. Drafting an order in a free style or a typical T-6 form.
The basis for the compilation are the documents handed over to the workers. It is approved by its manager, after which the document is brought to the attention of the employee.
Step 3. Vacation pay for three days or earlier.
For an employee studying for a master's degree
Undergraduates have the right to apply for educational paid or unpaid leave if they receive the first higher education in any form. The eyeglasses do not receive payment, all the others claim vacation pay.
It's fast and free!
Study leave is a leave for an employee who combines work with study. Under what conditions is the employer obliged to provide such leave? How to calculate and pay it correctly, including part-time workers? Let's break down the rules and answer common questions
Rule 1. Study leave - for certain programs
The employer is obliged to provide study leave to employees who work and receive education:
- higher education in bachelor's, specialist's or master's programs, as well as enroll in these educational programs (Article 173 of the Labor Code of the Russian Federation);
- higher education - training of highly qualified personnel or are applicants for the degree of candidate or doctor of science (Article 173.1 of the Labor Code of the Russian Federation);
- secondary vocational education, and also enter training in this type of education (Article 174 of the Labor Code of the Russian Federation);
- basic general education or secondary general education in part-time education (Article 176 of the Labor Code of the Russian Federation).
Rule 2. Conditions for granting study leave - there are nuances
- Condition 1. Guarantees and compensations for employees who combine work with education are provided upon receiving an education of the appropriate level for the first time (Article 177 of the Labor Code of the Russian Federation).
The form of study (full-time, part-time, part-time) is not a condition for granting educational leave, but affects its payment:
- If the employee is studying full-time, then study leave is not paid.
- If on a part-time or part-time form of study, then the average earnings are retained for the period of study leave (Articles 173, 173.1, 174, 176 of the Labor Code of the Russian Federation).
Example. The employee has a secondary vocational education (graduated from college). He decided to go to college in another specialty - in this case, he cannot count on the study leave again.
Guarantees and compensations are due to employees who already have a vocational education of the appropriate level and whom the employer sent to receive education in accordance with an employment contract or apprenticeship agreement concluded between the employee and the employer in writing.
- Condition 2. If an employee works and studies simultaneously in two organizations engaged in educational activities, guarantees and compensations are provided by one of these organizations (at the choice of the employee) (Article 177 of the Labor Code of the Russian Federation).
- Condition 3. The educational institution in which the employee is trained has state accreditation. The register of accredited educational organizations can be found on the website of the Federal Service for Supervision in Education and Science.
Exception: the employer has the right to grant study leave to an employee who is studying at an educational institution without state accreditation, if this is specified in the labor (collective) agreement.
- Condition 4. Study leave can be granted only on the basis of a certificate-call from an educational institution.
- Condition 5. Study leave is granted for a duration not exceeding that specified in the Labor Code of the Russian Federation.
Exception: the employer can provide educational leave for longer periods, provided that this is specified in the employment (collective) agreement.
- Condition 6. Study leave is granted only at the main place of work (Article 287 of the Labor Code of the Russian Federation). A part-time worker during the session must continue to work in his free time from study or take a leave for this time without pay (pay attention to rules 4 and 5).
Example. At employee two jobs: permanent and part-time. He combines work with higher education. Study leave is allowed only in one place of work, for example, in the organization in which he works constantly. The employee had a question: is it possible to undergo training and at the same time work in an organization that is a second place of work - part-time? An employee can apply to the employer of the organization where he works part-time with a request to grant him leave at his own expense for the period of study. The employer has the right to refuse the request of the employee, referring to the fact that such a condition is not spelled out in the labor (collective agreement).
Rule 3. Registration of study leave. Procedure
- The employee applies to the employer with a statement, which is accompanied by a certificate-call from the educational institution.
- The head issues an order (form No. T-6 or No. T-6a) to provide the employee with a guarantee.
- The accountant draws up a note-calculation, where the average earnings will be calculated.
- Data on study leave is recorded in the employee's personal card (form No. T-2), personal account (form No. T-54 or No. T-54a) and in the time sheet (form No. T-12 or No. T-13).
Rule 4. Study leave pay
Example. The employee passes the final state certification for up to 4 months upon receipt of higher education under the bachelor's program. During this period, he retains the average earnings. But if an employee passes entrance tests to such an educational institution, then the average salary is no longer paid. An employee can only count on retaining his place of work for the period of entrance examinations.
For more information about the cases when you should pay the average salary, and when not, we recommend that you look at Art. 173-176 of the Labor Code of the Russian Federation. It also indicates other guarantees that an employee who combines work with training can count on. For example, for employees who successfully master state-accredited bachelor's programs, specialist's programs or master's programs in part-time and part-time forms of study, for a period of up to 10 academic months before the start of passing the state final certification, a working week is set at their request, reduced by 7 hours.
Average earnings for the time an employee is on study leave are paid in accordance with the rules of Decree of the Government of the Russian Federation of December 24, 2007 No. 922.
From the amount received, personal income tax should be withheld and this amount should be included in the base for calculating insurance premiums to off-budget funds of the Russian Federation. When calculating income tax, these amounts can be included in labor costs (Article 255 of the Tax Code of the Russian Federation).
Rule 5. Calculation of average earnings during study leave
The average earnings for the time the employee is on study leave should be paid on time. A common question: “Payments for study leave in the same way as for the next one, we make 3 days before the vacation?”
Yes, that's right (part 9 of article 136 of the Labor Code of the Russian Federation, Letter of Rostrud dated July 30, 2014 No. 1693-1).
The employee must receive the average salary before the start of the study leave. It is a mistake to pay average earnings after the employee brings a confirmation certificate.
You may have another question: what to do if the employee did not bring a confirmation certificate? In accounting, reverse entries should be made for the amount of average earnings paid to the employee before the start of the vacation.
Answers to common questions about study holidays
The employee wants to add the main vacation to the study leave. Is it correct?
- The employee's request is invalid. The issue of joining the study leave to the annual paid leave is decided by agreement between the employer and the employee (part 2 of article 177 of the Labor Code of the Russian Federation).
Is it possible to partially use study leave?
- Study leave is a right, not an obligation, of an employee. The right to grant an employee a study leave of a fixed duration is given, in particular, by a certificate of summons, which, among other things, determines the terms of such leave. This follows from Part 4 of Art. 177 of the Labor Code of the Russian Federation, the form of a certificate of call, approved by Order of the Ministry of Education and Science of Russia dated December 19, 2013 No. 1368. Accordingly, an employee can exercise his right to study leave only within the period specified in the certificate of call. At the same time, labor legislation does not prohibit the use of such study leave in part.
Does an employer have the right to refuse an employee a study leave due to a production need?
- No, not right. The provision of study leave on the basis of a certificate of call does not depend on the discretion of the employer. The employee has the right to take such leave, even if the employer does not agree.
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