It is not uncommon for individuals to combine work with education in educational institutions. Guarantees and compensations for such employees are established by Chapter 26 of the Labor Code of the Russian Federation. These include: the provision of additional paid leave and leave without pay, payment for travel to the place of study, reduction in the length of the working day or working week.

Recall that (Article 164 of the Labor Code of the Russian Federation):

guarantees are understood as the means, methods and conditions by which the exercise of the rights granted to employees in the field of social and labor relations is ensured, and

under compensation - cash payments established for the purpose of reimbursement to employees of costs associated with the performance of their labor or other duties provided for by the Labor Code of the Russian Federation and other federal laws.

The list of guarantees and benefits provided to the employee depends both on the level of education received (secondary general, primary vocational, secondary vocational, higher professional, postgraduate professional), and on the form of education (full-time, part-time, evening).

The main general educational programs include, in particular, the educational programs of basic general and secondary general education.

The main professional educational programs include:

educational programs of secondary vocational education - training programs for skilled workers, employees and training programs for mid-level specialists;

educational programs of higher education:

Bachelor's, specialist's, master's programs;

Programs for the training of scientific and pedagogical personnel in graduate school (adjuncture), residency and assistantship-internship programs;

main vocational training programs - vocational training programs for the professions of workers, positions of employees, retraining of workers, employees and advanced training of workers, employees.

Additional educational programs include (clause 4, article 12 of Law N 273-FZ):

additional general education programs: additional general developmental and pre-professional programs;

additional professional programs: advanced training and professional retraining programs.

It should be noted that the receipt of education under the training programs for mid-level specialists by an employee who has a diploma of secondary vocational education with the qualification of a qualified worker or employee, by virtue of paragraph 5 of Article 68 of Law N 273-FZ, is not considered as obtaining a second or subsequent secondary vocational education.

Note. According to the Federal Law of December 29, 2013 N 273-FZ "On Education in the Russian Federation", which entered into force on September 1, 2013, the main educational programs include basic general education, basic professional educational programs and basic vocational training programs (clause 3 of article 12 Law N 273-FZ).

The receipt by an employee with a bachelor's degree of higher professional education under the master's program cannot be considered as the receipt of a second higher professional education by him and does not deprive him of the right to use the guarantees provided for by the legislation of the Russian Federation.

It is also not considered as receiving a second or subsequent higher education, and training in master's programs by persons with higher professional education, confirmed by the assignment of the qualification "certified specialist" to them (clause 15 of article 108 of law N 273-FZ, introduced by Federal Law of 03.02.14 N 11-FZ "On Amendments to Article 108 of the Federal Law "On Education in the Russian Federation"").

Note. The second higher education is now considered to be the education received (subclause 1, clause 8, article 69 of Law N 273-FZ):

• 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 who have 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;
• for training programs for scientific and pedagogical personnel - by persons who have a postgraduate diploma (adjuncture) or a candidate of science diploma.

study leave

The most significant guarantee for employees who combine work with study is study leave. It is provided in calendar days, regardless of the actual duration of the employee's work with the employer. Moreover, study leave can be both paid and without saving average earnings. What kind of vacation an employee is entitled to depends on the form of training, the type of educational programs and a number of other conditions.

- paid

Educational leave with the preservation of the average wage is granted to employees who study:

in higher education institutions on a part-time or part-time (evening) form of education;

institutions of secondary vocational education (technical schools, colleges) on a part-time or part-time (evening) form of education;

educational institutions of primary vocational education (schools, training courses) regardless of the form of education;

evening (shift) educational institutions (schools, gymnasiums), regardless of the form of education.

Form and type of training	Duration of paid study leave (vacation)	Base
Correspondence education programs: training of scientific and pedagogical staff in graduate school (adjuncture); residency; assistantship-internships	30 calendar days annually during training; additional time spent on travel from the place of work to the place of study and back	Article 173.1 of the Labor Code of the Russian Federation
Employees mastering the training programs for scientific and pedagogical personnel in graduate school (adjuncture), as well as persons who are applicants for the degree of candidate of science	Three months - to complete the dissertation for the degree of candidate of sciences	Article 173.1 of the Labor Code of the Russian Federation
Correspondence and part-time (evening) forms of education for state-accredited programs: bachelor's, specialist's and master's programs	40 calendar days - to pass the intermediate certification in the first and second years; 50 calendar days - to pass an intermediate certification at each of the subsequent courses (when mastering educational programs in a shortened time - in the second year); up to four months - to pass the state final certification	Article 173 of the Labor Code of the Russian Federation
Correspondence and part-time (evening) forms of education for programs of secondary vocational education that have state accreditation	30 calendar days - for passing intermediate certification in the first and second years; 40 calendar days - to pass the intermediate certification at each of the subsequent courses; up to two months - to pass the state final certification	Article 174 of the Labor Code of the Russian Federation
Part-time form of education according to state-accredited educational programs of basic general or secondary general education	To pass the state final certification: 9 calendar days - according to the educational program of basic general education; 22 calendar days - according to the educational program of secondary general education	Article 176 of the Labor Code of the Russian Federation

The established duration of study holidays provided with the preservation of average earnings, depending on the type of study, is given in the table.

Paid study leave is granted to an employee if the following conditions are simultaneously met (Articles 173, 174, 176, 177 of the Labor Code of the Russian Federation):

state accreditation of educational programs;

the employee receives education of this level for the first time;

successful employee training.

There is no deciphering of the concept of "successful training" in the labor legislation. It is logical to assume that if a student has submitted a certificate-call from an educational institution, and earlier, after the end of study holidays, brought a certificate-confirmation (from the end of February this is the tear-off part (second) of the certificate-call), training can be considered successful.

If an employee is studying at two educational institutions at once, then educational leave is granted only in connection with studying at one of these institutions at the employee's choice (part 4 of article 177 of the Labor Code of the Russian Federation). At the same time, the right to choose is not limited to one university by the mentioned norm.

Note. Until September 1, 2013, Article 175 of the Labor Code of the Russian Federation provided for guarantees and compensations for employees studying in educational institutions of primary vocational education. Paragraph 21 of Article 80 of the Federal Law of July 2, 2013 N 185-FZ, this provision was abolished. This is due to the fact that, on the basis of Article 108 of Law N 273-FZ, primary vocational education is equated with secondary vocational education in training programs for skilled workers (employees). And for persons combining work with receiving secondary vocational education, and employees entering educational programs for secondary vocational education, guarantees and compensations are established by Article 174 of the Labor Code of the Russian Federation.

Example 1

In order to pass an interim attestation at a university in the first year, an employee with an application for study leave submitted a certificate-call from one educational institution. At the same time, the name of this institution appeared in the application submitted by him.

To pass such certification in the second year, in the application for study leave, he indicated the name of another educational institution, from which the certificate-call was submitted.

In both cases, the employer must provide the employee with study leave.

The right to choose an educational institution cannot affect the total duration of study holidays.

Vacations related to studying at an educational institution of higher or secondary vocational education are granted for the number of days specified in the call certificate, but not more than the number specified in Articles 173 and 174 of the Labor Code of the Russian Federation.

Usually, in order to provide study leave, an employee studying at a higher or secondary educational institution submits an application, to which he attaches a certificate-call from an educational institution. The call-out form, which gives the right to provide guarantees and compensations to employees who combine work with education, was approved by order of the Ministry of Education and Science of Russia dated December 19, 2013 N 1368. It has been used since February 25 of this year. And it is the same for all training programs. Prior to this, different forms of certificates were used for students in secondary and higher educational institutions (approved by orders of the Ministry of Education of Russia dated 12.17.02 N 4426 and dated 05.13.03 N 2057, respectively). In the annexes to the mentioned orders, two forms of certificates were given: one of them was used if the employee was entitled to study leave with the preservation of average earnings (Appendix 1), the other - if unpaid leave was required (Appendix 2).

When specifying the last name, first name and patronymic of the applicant for study leave, the call certificate also contains his status: student, student of the preparatory department - or admission to the entrance exams.

All possible reasons for granting study leave are now listed in the help-call:

• passing entrance exams;
• intermediate certification;
• state final certification;
• final examination;
• preparation and defense of the final qualifying work;
• passing the final state exams;
• completion of a dissertation for the degree of candidate of sciences, one of which must be indicated.

The certificate also contains the level of education (basic general, secondary general, secondary vocational, higher) carried out by an educational institution according to educational programs that are mastered by trainees.

The manual states:

• form of education (full-time, part-time, part-time);
• course of study (for students);
• the name of the accreditation body that issued the certificate of state accreditation to the educational institution;
• details of the certificate of state accreditation;
• start and end dates of study leave and its duration in calendar days;
• code and name of the profession.

This information allows the employer to verify that the required conditions are met when granting study leave.

Note. All educational institutions that implement training programs, the development of which by an employee-student allows him to qualify for guarantees and compensations provided for by the mentioned articles 173, 173.1, 174 and 176 of the Labor Code of the Russian Federation, are now turning to the new form of a call-back.

Study leave is supposed to be granted strictly within the time limits specified in the call certificate. It happens that a student employee indicates in the application for the study leave a shorter period than that given in the call certificate. It is understandable that the employee wants to have as little loss of money as possible. After all, the pay for a day of study leave is lower than the pay for an employee's working day. Therefore, he tries to document a shorter period of his vacation in order to increase the number of working days. Moreover, the use of such leave is a right, not an obligation of an employee, and in the labor legislation of the Russian Federation there is no rule prohibiting the partial use of study leave.

The Trudoviks, on the other hand, are leaning towards something else. The employer, in their opinion, is not entitled to reduce the period of study leave specified in the call certificate. This additional leave has a strictly designated purpose and should only be used within the stipulated time. Reducing the period of study leave can adversely affect the effectiveness of training and affect the overall performance of the student. At the same time, officials believe that the reduction in the period of study leave will not fully comply with the current legislation of the Russian Federation (letter of Rostrud dated 12.09.13 N 697-6-1).

Help-call, as mentioned above, consists of two parts. The first part of it is filled in by the educational institution and transferred to the employer. On the basis of this part of the certificate, they are granted study leave to the employee. The initially blank second part of the certificate is issued by the educational institution after the end of the relevant training. This part is a confirming document that the employee is studying, and this, in turn, confirms the intended use of the study leave.

Note that the Labor Code of the Russian Federation does not say anything about guarantees to an employee if he takes exams for certificates of basic general or secondary complete general education as an external student. In the law N 273-FZ there is only a mention of the possibility of persons who do not have a basic general or secondary general education to pass externally an intermediate and state final certification in an organization that carries out educational activities according to the corresponding state-accredited basic general education program (clause 3 of Art. 34 of Law N 273-FZ). At one time, guarantees for such a case were spelled out in the Regulations on Benefits for Workers and Employees Combining Work with Studying in Educational Institutions (approved by Decree of the Council of Ministers of the USSR of December 24, 1982 N 1116). But this document, in accordance with Decree of the Government of the Russian Federation of March 28, 2012 N 245, from April 14, 2012, was recognized as not valid on the territory of the Russian Federation (clause 10 of Appendix N 1 to Decree N 245).

- unpaid holidays

In some cases, the employer, at the request of the employee, is obliged to provide him with study leave without pay. Such study holidays are also calculated in calendar days, and their duration depends on the purposes for which these holidays will be used.

If an employee combines work with full-time study in state-accredited bachelor's, specialist's or master's programs at a higher educational institution, then the employer, by virtue of Part 2 of Article 173 of the Labor Code of the Russian Federation, is obliged to provide him with unpaid leave for a duration of:

15 calendar days in the academic year - for the period of passing the intermediate certification for each course;

four months - for the period of preparation and defense of the final qualifying work and passing the final state exams;

one month - for the period of passing the final state exams.

A similar rule has been established for the case of combining work with full-time study in state-accredited educational programs of secondary vocational education. An employee who carries out such studies is entitled to leave without pay for a duration (part 2 of article 174 of the Labor Code of the Russian Federation):

10 calendar days in the academic year - for the period of passing the intermediate certification for each course;

up to two months - to pass the state final certification.

If the employee is only going to enter a higher professional educational institution, then for the period of passing the entrance exams he is granted leave without pay for 15 calendar days (part 2 of article 173 of the Labor Code of the Russian Federation). Upon admission to a secondary vocational educational institution, the duration of such leave is 10 calendar days (part 2 of article 174 of the Labor Code of the Russian Federation).

When passing final exams at the preparatory department of an educational institution of higher professional education, leave without pay is granted for 15 calendar days in the academic year (part 2 of article 173 of the Labor Code of the Russian Federation).

Other warranties

Employees studying in part-time and part-time forms of study in state-accredited educational programs:

bachelor's, specialist's, master's degree;

secondary vocational education, -

for a period of up to 10 academic months before the start of the state final certification, a working week is established at their request, reduced by 7 hours. During the period of release from work, these employees are paid 50% of the average earnings at their main place of work, but not less than the minimum wage (part 4 of article 173, part 4 of article 174 of the Labor Code of the Russian Federation).

Possible abbreviation:

providing an employee with one day off from work per week, or

reduction of working hours during the week -

determined by agreement of the parties to the employment contract (part 5 of article 173, part 5 of article 174 of the Labor Code of the Russian Federation).

Note. If during the year an intermediate certification or passing exams is held at an educational institution several times, then the study leave is divided into parts in accordance with the call certificate. At the same time, the total number of days of study leave should not exceed the norms established by the legislation of the Russian Federation.

Employees who are studying programs for the training of scientific and pedagogical personnel in graduate school (adjuncture), residency programs and assistantship-internships in part-time education are entitled to one free day from work per week with payment in the amount of 50% of the salary received.

The employer has the right to provide the indicated persons in the last year of study at their request with no more than two additional days free from work per week without pay (part 1 of article 173.1 of the Labor Code of the Russian Federation).

It was mentioned above that for these persons, the time spent on travel from the place of work to the place of study and back is added to the annual additional leave, while maintaining the average earnings. The specified travel is paid by the employer (part 1 of article 173.1 of the Labor Code of the Russian Federation).

The legislator has imposed an obligation on the employer to pay for the travel of part-time workers studying in educational institutions located in other cities. So, employees who successfully master state-accredited bachelor's, specialist's or master's programs, the employer must once in the academic year pay for travel to the location of the relevant organization engaged in educational activities and back (part 3 of article 173 of the Labor Code of the Russian Federation).

Note. Guarantees and compensations for persons who combine work with study are provided upon receiving an education of the appropriate level for the first time. The fulfillment of this condition is not required in the case (part 3 of article 177 of the Labor Code of the Russian Federation):

referral by the employer to receive an appropriate professional education of an employee who already has an education of this level, and

if such an obligation of the employer is prescribed either in the employment contract or in a specially concluded agreement between him and the employee.

For employees who are mastering state-accredited educational programs of secondary vocational education, the employer is obliged to pay travel to the location of the educational organization and back once in the academic year in the amount of 50% of the fare (part 3 of article 173 of the Labor Code of the Russian Federation).

The type of transport and the route is chosen by the student.

The procedure for paying for travel by labor legislation is not established, therefore it is determined by an agreement between the employee and the employer. In our opinion, in order to pay the mentioned compensation, the employee must submit:

application for payment of travel to the place of study and back;

a document that confirms studying at the relevant educational institution (certificate, student card, grade book, etc.);

travel documents certifying travel to and from the place of study.

The absence of an educational institution of state accreditation for the implementation of the said payment can be "compensated" by the obligation of the employer to pay for travel to students, prescribed in a collective or employment contract.

The norm establishing the relevant condition in terms of first education, according to the Constitutional Court of the Russian Federation, does not prevent the issue of guarantees and compensations for employees receiving a second higher education within the framework of collective agreement and individual agreement regulation and does not exclude the obligation of the employer to provide benefits to such employees in connection with training, if it is provided for by a collective agreement or an agreement between the employee and the employer.

The provision of Part 1 of Article 177 of the Labor Code of the Russian Federation in itself cannot be considered as restricting the constitutional rights and freedoms of citizens wishing to receive a second higher education, and violating the provisions of Parts 2 and 3 of Article 55 of the Constitution of the Russian Federation. It cannot be regarded as violating the equality of all before the law and the court and the equality of human and civil rights and freedoms (parts 1 and 2 of article 19 of the Constitution of the Russian Federation), since the constitutional principle of equality does not imply the requirement to provide equal guarantees and compensations to persons belonging to to different categories - those who receive higher education for the first time and already have an education of this level (definition of the Constitutional Court of the Russian Federation of 08.04.04 N 167-O).

Guarantees and compensations for employees who combine work with the development of educational programs that do not have state accreditation:

bachelor's, specialist's or master's degree;

secondary vocational education;

basic general or secondary general education in full-time-correspondence form of education, -

may be established by a collective agreement or an employment contract (Articles 173, 174, 176 of the Labor Code of the Russian Federation).

Vacation registration

Based on the application of the employee and the reference-call, an order is issued to grant study leave.

On January 1, 2013, the Federal Law of December 6, 2011 N 402-FZ "On Accounting" came into force. It does not contain requirements on the need to draw up primary accounting documents according to unified forms. The Ministry of Finance of Russia in the information N PZ-10/2012 noted that the forms of primary accounting documents established by the authorized bodies in accordance with other federal laws and on their basis remain mandatory. According to the Trudoviks, after the entry into force of Law N 402-FZ, non-governmental organizations have the right to use the forms of primary accounting documents developed by them independently (letters of Rostrud dated 01/09/13 N 2-TZ, dated 01/23/13 N PG / 10659-6-1, dated 14.02.13 N PG / 1487-6-1).

The requirements for primary accounting documents contained in Article 9 of Law N 402-FZ can only be partially applied to documents used to record events in the field of labor relations. Paperwork using independently developed forms for accounting for labor and its payment may cause claims from inspectors, since the developed form may not take into account (not fully take into account) the requirements of labor legislation for a particular document. Therefore, at present, in our opinion, in terms of compiling documents on accounting for labor and its payment, it is still more expedient for organizations to use unified forms approved by the Decree of the State Statistics Committee of Russia dated 05.01.04 N 1. The use of these unified forms in accordance with paragraph 4 of Article 9 of the law N 402-FZ must be approved either by a separate order of the head of the organization, or by an annex to the accounting policy.

When using unified forms, an order for the provision of study leave is issued in the form N T-6. In section "B" of this form, it is necessary to reflect the type of vacation in accordance with Chapter 26 of the Labor Code of the Russian Federation (additional leave with the preservation of average earnings or without pay). In parentheses, you can give the common name "training". The column "Period of work" is not filled in, since the Labor Code of the Russian Federation does not associate the provision of this leave with the period of work.

Section "B" indicates the total number of calendar days and the period of vacation (vacations) with the specific dates of its (their) beginning and end.

The signed order is registered in the register of orders for granting leave.

If a vacation is issued with the preservation of average earnings, the order with the signature of the employee is transferred to the accounting department for accrual of vacation pay. At the same time, a note-calculation is drawn up on the provision of leave to the employee (form N T-60): the personnel department fills out section "B" in terms of additional leave, while the accounting department provides data on the calculation of vacation pay.

Study leave is paid based on the average salary of the employee. Payment for study leave is calculated in the same way as for annual paid leave.

Recall that the average daily earnings () for paying holidays and paying compensation for unused holidays 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) (part 4 of article 139 of the Labor Code RF).

But in most cases, student workers do not work out the full billing period. If one or several months of the billing period are not fully worked out or the time was excluded from it when:

the employee retained the average salary in accordance with the legislation of the Russian Federation, with the exception of breaks for feeding the child, provided for by the labor legislation of the Russian Federation, and (or)

the employee received temporary disability benefits or maternity benefits, -

as well as in other cases specified in paragraph 5 of the Regulations on the peculiarities of the procedure for calculating the average wage (approved by Decree of the Government of the Russian Federation of December 24, 07 N 922), the average daily wage is calculated by dividing the amount of actually accrued wages for the billing period by the aggregate of the average monthly number calendar days multiplied by the number of full calendar months and the number of calendar days in incomplete calendar months (clause 10 of the said provision).

The number of calendar days in an incomplete calendar month is calculated by dividing the average monthly number of calendar days (29.4) by the number of calendar days of that month and multiplying by the number of calendar days falling on the time worked in that month.

Example 2

The employee was granted study leave from June 9 to July 3, 2014 for a period of 25 calendar days to pass an interim certification. The billing period from June 1, 2013 to May 31, 2014 was not fully worked out: from June 10 to June 29 and from December 2 to December 21, he was on study leave, and from September 2 to September 29 - on annual paid leave. The salary of an employee in the billing period is 21,500 rubles. During this period, he received quarterly bonuses of 18,268, 17,693, 18,627 and 26,200 rubles, which were calculated based on the actual hours worked.

For not fully worked months of the billing period, the employee was accrued: 5657.89 rubles. (21,500 rubles: 19 days x 5 days) in June, 1023.81 rubles. (21,500 rubles / 21 days x 1 day) in September, 6840.91 rubles. (21,500 rubles: 22 days x 7 days) in December.

In total, for the billing period, the employee was accrued 287,810.61 rubles (21,500 rubles / month x 9 months + 5657.89 rubles + 1023.81 rubles + 6840.91 rubles + 18 268 rubles + 17 RUB 693 + RUB 18,627 + RUB 26,200).

In June, 5 days worked account for 9 calendar days. Based on this, when calculating the average daily earnings for this month, hours worked account for 8.82 cal. days (29.4 x 9:30). In September, the employee worked one working day - the 30th, he has the same number of calendar days, but 0.98 cal is taken into account. days (29.4 x 1:30). In December, 7 days worked account for 10 calendar days, based on this, 9.48 days are taken into account. (29.4 x 10:31).

The average daily earnings - 1013.85 rubles / day. (287,810.61 rubles / (29.4 days / month x 9 months + 8.82 days + 0.98 days + 9.48 days)). For study leave, the employee was accrued 25,346.25 rubles. (1013.85 rubles/day x 25 days).

It is possible that the days of study leave will have a non-working holiday. The legislation does not provide for the extension of study holidays by the number of non-working holidays that fall during such a vacation, since the rule on extending vacation for non-working holidays that fall during the vacation period applies only to annual basic or annual additional holidays (Article 120 of the Labor Code of the Russian Federation). Therefore, when determining the amount of vacation pay for additional educational leave, all calendar days (including non-working holidays) falling within the period of such vacations provided in accordance with the call certificate of the educational institution are subject to payment.

During the study leave, there is a non-working holiday on June 12. And he was included in the number of paid 25 calendar days indicated in the call certificate.

The rule on non-extension of study leave also applies to the period of incapacity for work. If the period of temporary disability fully or partially coincides with the period of study leave, the corresponding allowance is not paid (subclause 1, clause 1, article 9 of the Federal Law of December 29, 2006 N 255-FZ "On Compulsory Social Insurance in case of temporary disability and maternity", subparagraph "a", paragraph 17 of the Regulation on the peculiarities of the procedure for calculating benefits for temporary disability, for pregnancy and childbirth for citizens subject to compulsory social insurance in case of temporary disability and in connection with motherhood, approved by the Decree of the Government of the Russian Federation of 15.06.07 N 375).

If at the end of the study leave the employee continues to get sick, then starting from the day when he was supposed to go to work, he should accrue temporary disability benefits (part 1 of article 183 of the Labor Code of the Russian Federation, clause 2 of article 5, clause 1 of article 13 of Law N 255-FZ).

Vacation payment must be made no later than three days before it starts (part 9 of article 136 of the Labor Code of the Russian Federation). This rule also applies to educational paid holidays. In practice, employers not so rarely neglect this rule, thereby infringing on the rights of employees. The payment of remuneration for study leave after the employee provides the second part of the certificate-call is a violation of the labor legislation of the Russian Federation.

An entry on the provision of educational leave is also made in section VIII "Vacations" of the personal card (form N T-2) of the employee.

In the timesheet (form T-13) or in the timesheet and payroll (form T-12) (approved by the resolution of the State Statistics Committee of the Russian Federation of 05.01.04 N 1) when granting study leave:

with the preservation of wages, the letter code "U" or the digital code "11" are affixed;

without saving earnings - the letter "UD" or the digital "13".

The certificate-call, on the basis of which study leave is granted, must be stored in the organization for at least five years (clause 417 of the List of typical managerial archival documents generated in the course of the activities of state bodies, local governments and organizations, indicating the storage periods, approved by order Ministry of Culture of Russia dated 25.08.10 N 558).

If the employee is registered on the terms of internal combination, he is provided with paid study leave only at the main place of work, unless otherwise provided in the collective agreement of the university. Concurrently, he must issue a leave without maintenance for the duration of the study leave. With this in mind, the calculation of the retained average earnings is also carried out.

As you can see, the provision of study leave on the basis of a call certificate does not depend on the discretion of the employer. Additional leave for persons who combine work with education is one of the types of guarantees provided for by the current legislation of the Russian Federation (mentioned articles 173, 173.1, 174, 176 of the Labor Code of the Russian Federation). Therefore, the employee has the right to take such leave even if he disagrees. Employers should remember that their actions:

for failure to provide the employee with study leave, which is due to him in accordance with the law or the collective agreement, labor contract, agreement, local regulatory act of the organization;

granting less than the required leave;

replacement of study leave with annual paid leave;

registration of unpaid leave in the case when it must be paid, -

as well as the failure to provide other guarantees and compensations related to study leave, may be appealed by the employee in court (Article 391 of the Labor Code of the Russian Federation).

For such acts, the employer may be held administratively liable under Article 5.27 of the Code of Administrative Offenses of the Russian Federation. Violation of labor legislation entails the imposition of an administrative fine:

for officials and entrepreneurs-employers - in the amount of 1,000 to 5,000 rubles;

for legal entities - from 30,000 to 50,000 rubles.

Arising Obligations

The average salary accrued to an employee during the period of study leave is recognized as income received from sources in the Russian Federation. Therefore, on a general basis, it is included in the taxable base when calculating the tax on the income of individuals (clause 1, article 209, clause 1, article 210 of the Tax Code of the Russian Federation).

This value is the object of taxation of insurance premiums for compulsory pension and medical insurance, as well as for compulsory social insurance in case of temporary disability and in connection with motherhood (clause 1, article 7 of the Federal Law of July 24, 2009 N 212-FZ "On insurance premiums to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund") and compulsory social insurance against industrial accidents and occupational diseases (clause 1, article 20.1 of the Federal Law of July 24, 1998 N 125-FZ "On compulsory social insurance against accidents at work and occupational diseases).

The amount of compensation for paying the employee’s travel to and from the place of study as a compensation payment established by the legislation of the Russian Federation is recognized as income not subject to personal income tax (clause 3 of article 217 of the Tax Code of the Russian Federation) and insurance premiums (subparagraph 2 of clause 1 of article 9 of Law N 212-FZ, subparagraph 2, paragraph 1, article 20.2 of Law No. 125-FZ).

The average earnings retained by the employee during the study leave are recognized as labor costs (clause 13, article 255 of the Tax Code of the Russian Federation) and are included in expenses taken into account when calculating income tax. The amount of compensation payments for travel to and from the place of study is also recognized as labor costs.

If the collective agreement provides for the provision of additional days of study leave in comparison with the established legislation, or if it is paid in amounts exceeding the average salary retained by the employee, then the resulting excess over the amounts calculated in accordance with the current legislation is not taken into account in expenses. that reduce the income received (clause 24, article 270 of the Tax Code of the Russian Federation).

When using the accrual method in tax accounting, labor costs are taken into account on a monthly basis, based on the amounts calculated in accordance with Article 255 of the Tax Code of the Russian Federation (clause 4 of Article 272 of the Tax Code of the Russian Federation). It is possible that the period of study leave falls on two reporting (tax) periods. The Ministry of Finance of Russia, considering such a case with annual paid leave, strongly recommends that the amount of accrued vacation pay be included in expenses in proportion to the days of vacation falling on each reporting period (letters of the Ministry of Finance of Russia dated 07.23.12 N 03-03-06 / 1/356, dated 23.12 .10 N 03-03-06/1/804).

From vacation pay, the tax agent withheld personal income tax in the amount of 3295 rubles. (25,346.25 rubles x 13%) and transferred it to the account of the Federal Treasury on June 4. At the same time, 22,051.25 rubles were sent to the employee's card account. (25 346.25 - 3295).

When determining the wage fund for the organization for June, it included vacation pay of 25,346.25 rubles. and the remuneration accrued to the employee for five days worked - 5657.89 rubles. (21,500 rubles / 19 days x 5 days).

These amounts were taken into account when forming the taxable base for insurance premiums to state off-budget funds and for injuries in June of this year.

Following the insistent wishes of the financiers, the organization divided the vacation pay of 25,346.25 rubles. in proportion to the number of study leave days falling in June (22 days) and July (3 days) - 22,304.70 rubles. (1013.85 rubles / day x 22 days) and 3041.55 rubles. (1013.85 rubles / day x 3 days), respectively.

The taxpayer included the first amount in labor costs when calculating income tax for the first half of 2014, while the second was taken into account by him when forming the taxable base for income tax for nine months of the current year.

However, judges do not always agree with such a proposal. Thus, the judges of the Federal Antimonopoly Service of the West Siberian District, taking into account the provisions of Article 136 of the Labor Code of the Russian Federation, according to which vacation pay is made no later than three days before its start, considered it lawful to include the vacation pay accrued by the taxpayer for the period falling on two tax periods following each other. after another, into expenses for taxation purposes in the first tax period (Decree of the Federal Antimonopoly Service of the West Siberian District of December 26, 2011 N A27-6004 / 2011).

The Federal Antimonopoly Service of the Moscow District, in its resolution of 24.06.09 N KA-A40 / 4219-09, indicated that expenses accrued in December of the reporting year for vacation falling in January-February of the next year should be recognized as expenses of the reporting year in full, without dividing into parts.

Educational leave is the number of days guaranteed by the Labor Code, which is necessary according to the standards of an educational institution to carry out the learning process of a student or schoolchild.

In addition to the Labor Code, the procedure for granting leave is regulated by laws on education.

This type of vacation is provided and is paid subject to a number of necessary conditions and the presence of a certificate-call.

Conditions for obtaining study leave

According to the Labor Code of the country, citizens who are officially employed in the territory of any subject of the Russian Federation and receive the following types of education can receive study leave:

1. Any, except for full-time (evening, remote, full-time), conducted on the basis of the university.
2. Secondary vocational.
3. Initial evening (replaceable).

According to the law on higher postgraduate education, postgraduate and doctoral students are also entitled to receive study leave.

Terms of study leave:

1. Education of this level is obtained for the first time. This means that the employee has the right to receive one higher, secondary or primary education with the provision of paid leave.
2. The employee is referred for training by the organization that is his main employer.

If an employee receives several types of education at the same time, compulsory study leave is possible only for one of them. Also important factors in granting leave are successful study and education at a state university.

Successful study is considered to be without retakes and satisfactory grades.

Calculation and payment of study leave

The calculation takes into account the average salary of the employee for the last year. At the same time, the legislation does not specify any restrictions on seniority.

Each day of study leave is paid in the amount of the daily average earnings.

The maximum number of days provided is regulated by the labor code, the nominal number is indicated in the call certificate of the educational institution.

The amount of payment for the day of study leave is calculated according to the formula:

where GZ - annual earnings, 12 - the number of months in a year, 29.4 - the average number of days in a month.

There is a practice of paying monetary compensations when it is necessary to find a postgraduate employee in the service, similar to the practice with annual leave.

Although there are no provisions prohibiting such a practice in the Labor Code, difficulties and confusion are possible when submitting reports to the tax service, so the Federal Tax Service is extremely negative about this type of compensation.

The calculation of payment for study leave is made by an accountant or directly by the employer. The calculation can be made in any program, for example, Microsoft Excel.

According to the 2011 resolution, organizations are required to form a reserve for the payment of vacation pay of any kind.

Obtaining study leave when an employee receives a second higher education

In this case, two laws come into conflict: the Law on Higher and Postgraduate Education and Article 177 of the Labor Code of the Russian Federation.

The first one speaks of the need to provide educational leave, regardless of how many times an employee receives it; the Labor Code spells out the obligations of an organization in relation to a student employee only if they receive their first education.

On April 8, 2004, the Constitutional Court considered the complaint of a citizen of the Russian Federation in connection with the infringement of human rights by Article 177 of the Labor Code of the Russian Federation. The claim was based on Article 43 of the Constitution on the right of every member of society to receive education, which is free and publicly available.

The Constitutional Court ruled that Article 177 does not prevent such education, but is a guarantor of harmonious relations between the participants in the work process.

Based on this, we can say that Article 177 of the Labor Code of the Russian Federation has greater legal force, and the employer is not obliged to pay for vacation to attend classes or pass a session when an employee receives a second higher education.

An employee can count on annual unpaid leave if the employer is notified that he/she is receiving a second education and does not object

Vacation is granted at the request of the employee in writing or electronically without remuneration and accrual of seniority. This issue is regulated by Article 128 of the Labor Code of the Russian Federation, the duration of the vacation is determined by contract.

Unpaid study holidays

An employer must grant an employee leave with or without pay at its discretion in the following cases:

1. Submission of documents to an educational institution - 15 calendar days once a year for passing entrance examinations.
2. Attending preparatory courses on the basis of an educational institution - 15 calendar days once a year.
3. Conducting the practical part of scientific work, defending a graduation project, preparing and passing state exams by full-time students - 4 months at a time.
4. Attending tests and exams by full-time students - 15 calendar days once a year.

Controversial situations

Often, when granting educational leave, freelance and non-standard situations occur, which are not regulated in any way by the current legislation.

1. Coincidence of the annual basic leave with the study period. The employee during this period of time is listed as being on the main vacation. In this case, the employer is not obliged to extend it or pay monetary compensation.
2. Coincidence of study leave in time with administrative leave or leave without pay. As in the previous case, the employer has the right, but is not obliged to pay study leave or provide compensation.
3. An employee falls ill while on study leave. In this case, payment of temporary disability benefits is made from the first day of the expected start of employment.
4. Holidays and days off during study leave are paid according to the average salary.

Application for the use of study leave, sample:

Any employer may face a situation in which an employee needs this time. For this reason, he must know and comply with the rules governing the provision of study leave to an employee under the Labor Code of the Russian Federation.

The concept of study leave

The law does not directly use the term "study leave". The Labor Code speaks of guarantees and compensations for employees receiving education. This period is one of them. It is an additional vacation and provides for payment. The term "student leave" is also used. According to the Labor Code (Article 173), it is not provided in all cases and requires compliance with a number of conditions.

Grounds for granting study leave

Before calculating the amounts due and days off work, the employee needs to clarify whether student leave is paid in his case. The law establishes following conditions, which guarantee the acquisition of free time and the preservation of content:

• obtaining an education corresponding to the level for the first time;
• visiting an institution with state accreditation.

To send an employee to study, the simultaneous presence of both conditions is required.

The employer also needs to know if study leave is paid, as the incorrect application of the relevant rules can lead to tax problems.

Payment and registration of study leave in 2019

The correctness of the calculations is important for both parties to the employment contract. For an employee, the training period is associated with expenses that need to be planned, and the administration needs to make a payment without violating the law. Let's look at how study leave is paid.

The last changes to the law were made in 2014. The calculation of student leave in 2019 is carried out according to the rules that have been in force for several years. These rules can be found using the current version of the TC. The easiest and most reliable way to find out how study leave is paid in 2019 is to use the legal information system.

Vacation duration

The rules governing the duration of this period are established in Chapter 26 of the Labor Code of the Russian Federation. How student leave is paid is influenced by the level of education received and the type of activity with which the release from work is associated.

If we are talking about higher education, then the number of days provided will depend on the course in which the employee is studying. Before calculating student leave, you must read Art. 173 of the Labor Code of the Russian Federation.

If the employee is in the 1st or 2nd year, he is entitled to 40 days.

In subsequent courses, this period increases to 50 days.

When an employee needs time to prepare for the final exams, he is granted up to 4 months of leave.

It is important for the employer to know whether study leave is paid for distance learning. If the employee is a full-time student, then the company is not obliged to provide him with this period. The law provides only for the receipt of vacation days at one's own expense.

note

According to labor legislation, study leave is not included in the length of service, since no contributions to the Pension Fund are made at this time. More information about the types of holidays included in the experience can be found in this

Payment for study leave under the Labor Code for employees who are applicants for academic degrees and participants in training programs for highly qualified personnel is provided for in Art. 173.1 of this document. Part-time employees are entitled to a 30-day leave from work. Before calculating the study leave, it is necessary to add to the specified period the time required to travel to the educational institution (if it is located in another area). When defending a candidate's or doctoral dissertation, the duration of the vacation is 3 and 6 months, respectively.

For students receiving secondary vocational education by correspondence or part-time, the following duration of vacations is provided:

• 30 days are provided for 1 and 2 courses;
• in subsequent courses, this period is increased to 40 days;
• the period for preparing for state exams and passing them can be up to 2 months.

Let's see if the employer is obliged to pay for study leave if the employee receives a full-time secondary vocational education. As in the case of undergraduate and graduate programs, such an employee can only count on days at his own expense (Article 174 of the Labor Code of the Russian Federation).

There may be situations when an employee receives a secondary education. We are talking about night schools. For such employees, the law also provides for the payment of student leave. The Labor Code (Article 176) guarantees the provision of the following periods:

• 9 days, if we are talking about attestation in the program of basic general education;
• 22 days when passing exams as part of the secondary education program.

For convenience, you can use it for study holidays, which can be found on any specialized online portal.

Documents required for registration of study leave

To exercise the right to leave, the employee will have to present a number of documents.

• An application that is made in any form. The text must indicate the reason for the vacation and its duration.
• A document issued by an educational institution. In the case of universities, we are talking about a certificate-call. It consists of 2 parts: the first indicates the timing of the training activities, and the second is filled in upon their implementation.

Registration of study leave is carried out according to the general rules applicable to the annual rest period:

Certain issues of granting student leave

The direction of employees on study leave is associated with a number of features. In many cases, employees receive a second higher education. Whether study leave is paid in this case will depend on the terms of the collective agreement and (or) labor agreement. If they contain the appropriate conditions, then the employer is obliged to provide the specialist with the guarantees enshrined in these documents. When there are no such provisions in the text of the agreements, the rules of art. 177 of the Labor Code of the Russian Federation: study leave for obtaining a second higher education is not paid.

In cases where an employee is a student in 2 or more institutions in parallel, an exemption from work is granted at his choice within the framework of one training program.

Note! The granted study leave is not subject to monetary compensation or reduction, and Art. 125 of the Labor Code of the Russian Federation prohibits recalling an employee.

Joining this period to annual leave is possible only by agreement with the employer.

Knowledge of these rules will allow the specialist to calculate the time required to prepare for certification, and the employer to avoid violations that threaten liability.

The lawyer will answer your questions below in the comments

The employer is obliged to provide the employee with study leave, but this does not mean that in all cases it is paid.

From the article you will learn:

study leave

Article 173 of the Labor Code (study leave) provides for employees the right to be released from work for the period they undergo mandatory training activities that are required to obtain the appropriate diploma of completion of education at this level. At the same time, not every employee who is undergoing training can receive study leave: for this, it is necessary that his situation meets a number of criteria established by current legislation.

The most important of them are the following:

the employee receives education of the appropriate level for the first time. This means that in other cases he is not entitled to study leave - for example, this rule applies if he receives a second higher education. Experienced personnel officers recommend in such a situation to devote the time of the main vacation to passing exams and tests or to negotiate with the employer on registration leave without pay;

the educational organization in which he is studying has a valid state accreditation;

the employee successfully masters the educational program (the criteria for success are usually set by the educational institution itself);

In addition, an individual or collective agreement or other regulatory document regulating the rights of the employee and the obligations of the employer may also include other opportunities for granting leave for training. When considering them, it must be borne in mind that these documents cannot worsen the position of an employee in comparison with the current legislation. Check out this material to understand how this can be implemented in practice.

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Note! According to the provisions of Art. 287 of the Labor Code of the Russian Federation, an employee has the right to pay educational leave only at the main place of work. When working part-time, he will have to arrange the necessary days of rest at his own expense.

The provision of study leave under the Labor Code (Article 173) is an obligation, not the right of the employer. This means that in this case he does not have the opportunity to refuse the employee to provide such leave. In addition, it is important to take into account that in this situation the length of service of the employee with this employer does not matter. He can receive study leave even before he has worked for six months in this organization. Find out what to do if study leave overlaps with other types of leave, such as parental leave, by reading our .

Duration of study leave for students of higher educational institutions

An employee may be granted study leave for a different period of time. In particular, vacations for university students are regulated by the provisions of Art. 173 of the Labor Code of the Russian Federation. The maximum vacation time depends on a number of factors, including the type of education, the type of educational program, and some other nuances. So, certain types of vacations are provided with the preservation average earnings for the period of absence from the workplace:

to pass state exams and defend a thesis, an employee has the right to receive leave for up to 4 months.

Note! These types of vacations are provided only to employees who study on the job, that is, on a part-time or part-time basis.

In addition, for a number of training events, the employer is obliged to provide an employee who is studying at a university with unpaid leave:

for full-time students - 15 calendar days for regular sessions, one month for state exams, four months for state exams and diploma defense.

In addition to vacation, for university students, the current Labor Code also establishes additional guarantees and compensation, including:

payment by the employer for travel to the location of the university and back (for part-time students, once a year);

for students of the last year - a shortened working week, the duration of which is 7 hours less than the standard one. The reduction can be made by cutting the standard working day or maintaining its duration with the provision of one completely free working day per week (for part-time and part-time students, within 10 months before the final certification). At the same time, the time released from work for training is subject to payment in a special order: how exactly it needs to be paid, read in our material.

Note! The duration of study leave granted to an employee is measured in calendar days.

Duration of study leave for students of secondary specialized educational institutions

By analogy with university students who are given study leave under Article 173 by the Labor Code, the right to receive study leave under Art. 174 students also have secondary specialized educational institutions. Paid holiday provided to students of correspondence and part-time forms of education:

in order to pass state exams and defend a thesis, an employee has the right to receive leave for up to 2 months.

At the same time, an employee who simultaneously studies in two educational organizations has the right to receive leave and other benefits only in connection with education in one of them - at the employee's own choice.

Note! In the described case, the employee may lose the right to choose between organizations if only one of them has state accreditation: then leave is granted for training in this particular institution.

Help-call

Thus, the procedure for issuing study leave requires that the personnel officer arrange for the receipt of two necessary documents. The first of these is a certificate-call sent to an employee undergoing training by an educational institution that provides him with appropriate services. This document is drawn up by the educational institution and issued to the student for presentation at the place of work.

The certificate-call form was approved by order of the Ministry of Education and Science of the Russian Federation dated 12/19/2013. When receiving a certificate-call from an employee in the prescribed form, the personnel officer must check a number of important points that determine whether the employee is entitled to leave - in particular:

1. availability of state accreditation of the educational institution;
2. the right to receive paid leave;
3. the number of days assigned to the employee in connection with the training.

Recording study leave in the time sheet

Student leave under the Labor Code (Article 173), while retaining the right to pay wages for the period of absence from the workplace, can be received by employees who combine work activities with higher or secondary professional education. At the same time, however, a prerequisite for the emergence of such a right is a special form of obtaining such education - part-time or part-time, that is, on the job. Check out our material to find out how long this paid leave is for employees.

Based on the submitted documents from the educational institution, the employer must provide such employees with study leave to attend training events in accordance with Art. 173-177 of the Labor Code of the Russian Federation on study leave. To reflect study leave with pay in the form of a time sheet, you should use the code Y or 11.

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The modern edition of the Labor Code contains a large list of conditions and requirements for taking part-time students on paid leave to pass exams. Such leave shall include the number of days necessary and sufficient to prepare for and pass the session. Article 287 of the Labor Code of the Russian Federation states that part-time students are entitled to guaranteed paid leave only at their main place of work. In 2017, the procedure for paying vacations to part-time students has not changed.

If a student combines several jobs, then he can take a vacation at other, non-primary places, at his own expense. But only if it is written in the employment contract and there are necessary conditions for this at the workplace. Otherwise, the employer can always refuse study leave, and absenteeism during the session will qualify as.

Study leave is legally paid for part-time students, subject to exact conditions. The rule applies to the types of training:

• Correspondence, evening or remote on the basis of the university.
• Secondary professional (technical school, college, college).
• Evening initial, if it takes place in shifts.
• General average.

Students enrolled in graduate or doctoral programs are also entitled to paid vacation time during the session. Study leave must not coincide with other types of leave. So, if a student is currently in, then in order to receive a study leave, he needs to exit the previous one.

Other requirements for receiving paid leave:

• A person receives a specific level of education for the first time, that is, at the first higher or secondary level.
• A student can receive if an employer sent him to study.
• An educational institution must have a state license-accreditation.
• Payment is also possible in other cases, if it is written in the employment contract.
• With simultaneous training in educational institutions of different levels, leave is possible only for one of them.
• The university provides the student with a certificate-call to pass the session.

Education must be successful. What exactly is considered a successful study, the Labor Code does not say.

But in general, successful learning means no debts for previous study periods.

Collection of necessary documents

To apply for a leave for the period of study, a student is required to take a certificate-call of a standard form at a university or other educational institution and independently draw up an application.

The application is written in the name of the main employer and contains a request to go on vacation at a specific time for the specified reasons (for example, to pass the winter session at Moscow State University).

At the end, it is written “I am attaching a certificate-call to the application”, signed and dated.

The end of the session is certified in a special part of the certificate-call at the educational institution.

Such a confirmation certificate is given to the employer and serves as documentary evidence that the student used the leave for the intended purpose. The employer has the right to regard the absence of a certificate as absenteeism, and it may be followed.

Upon receipt of a certificate-call and a written application of the student, the employer draws up and signs order form No. T-6 or your own form, when granting study leave to several employees, an order of form T-6a is used.

The amount of payment for study leave

• Payments for study holidays are calculated on the basis of the average monthly level.
• All employee earnings for the year are taken and divided by 12 months.
• The resulting figure is divided by the average number of days in a month (according to Article 139 of the Labor Code of the Russian Federation, it is equal to 29.3).
• It turns out .
• The amount of vacation pay is equal to the average income per day, multiplied by the number of vacation days.

All vacations by law must be paid no later than 3 days before their occurrence (Article 136 of the Labor Code of the Russian Federation). In the case of study holidays, payments are due at the same time, that is, even before the start of the session.

Vacation periods

According to Art. 173 of the Labor Code of the Russian Federation, part-time students during their studies at the university are given certain vacation periods if they receive education for the first time and at a state educational institution:

1. On the first and second year - 40 days for passing the session;
2. Third and subsequent courses - 50 calendar days;
3. Diploma defense and final state accreditation - up to 4 months.

In the period of 10 months before the start of the final state exams, at the initiative of a part-time student, the duration of the working week can be reduced by 7 hours, while maintaining half of the average earnings.

Leave for the duration of the session when receiving secondary specialized education is slightly shorter. For first and second year students - 30 days per calendar year, third year students and beyond - 40 days. No more than 2 months are given for the defense of the diploma and final exams.

Display in accounting

Records of study holidays in accounting should be made in section 8 of the employee's personal card form No. T-2 or a form of their own design. One of two records is made about the type of leave:

1. Additional paid at the time of study.
2. Unpaid educational.

Columns No. 2 and 3 on the period of work should not be filled in, since study leave is not included in the calculation of working time. The fields are filled in on the number of vacation calendar days, the exact dates of the beginning and end of the vacation, and a link is provided to the number and date of the order signed by the director.

The timesheet on the basis of forms No. T-12 or T-13 during the vacation period is filled in by affixing special codes. Paid study leave corresponds to code U or 11.

Possibility to extend vacation

A part-time student can extend study leave in case of illness during the session. To do this, he needs to contact his educational institution and draw up an application for an increase in the session for the duration of the illness. At the same time, a new certificate-call with other dates is issued to the student.

The certificate refers to the workplace, to the accounting department or the personnel department, where the employee is provided with the rest of the vacation.

But the maximum duration of paid leave does not increase.

Let's sum up the article. Paid leave for part-time students is guaranteed in full by the Labor Code of the Russian Federation, but only under certain conditions. Among them - receiving education of this level for the first time, state accreditation of an educational institution and the success of studies, the absence of "tails" for previous sessions.

Also, only the employer from the main place of work can provide leave. Terms of study holidays and additional benefits for part-time students are described in Art. 173-176 TK. The amount of payment depends on the average earnings of a person per day.