Failure to provide vacation for more than 2 years in a row: what are the penalties?

Upon concluding an employment contract, the employee has the right to vacation. Vacation has its own questions regarding the procedure for granting vacation, liability for failure to provide vacation and compensation if vacation is not used. You will receive answers to these questions from our lawyer in this material.

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What and when is leave required according to the labor code?

Chapter 19 of the Labor Code of the Russian Federation is devoted to vacations. According to the provisions of labor legislation, leave may be the following:

annual basic leave , which is paid by the employer, as a rule, it is 28 days. This leave is provided in accordance with the vacation schedule, in some cases it may be provided not according to the schedule. The initial right to such leave arises after 6 months of work
Certain categories of workers are provided with annual additional leaves , which are paid. The corresponding leave can be granted together with the main leave or divided into parts with the main leave. Such leave is also indicated in the vacation schedule
, leave without pay may be granted . In some cases, in order to provide appropriate leave, in addition to the employee’s application, the employer’s consent is required
maternity leave . Such leave is granted to pregnant women, usually for 140 days, based on an application and provided sick leave. At the same time, a woman can go on vacation later, i.e. it is not necessary that she will take all 140 days
Holiday to care for the child . After maternity leave, a woman, upon her request, is granted leave to care for a child up to 3 years old. A woman can leave her vacation until her child is 3 years old.
study leave . As a general rule, if an employee works and studies, the employer is obliged to provide him with paid study leave based on the application and the provided certificate of summons from the educational institution

General rules

In order to take into account all legal norms and restrictions and avoid punishment for the lack of a vacation schedule, the personnel service plans in advance the work and rest schedule for the next year and puts everything into the T-7 form or its equivalent, developed and approved by the LNA. The schedule for the next year is approved no later than 2 weeks before its start.

IMPORTANT! Employers - individuals, registered or unregistered as individual entrepreneurs, have the right not to draw up a work and rest schedule, but to define it in a written agreement (Article 305 of the Labor Code of the Russian Federation). In this situation, there will be no fines, but provided that there is a replacement for it.

All employees have the right to rest, regardless of whether they have a permanent or fixed-term contract. The vacation of employees hired under fixed-term contracts rolling over to the next calendar year is planned in accordance with the general procedure (Article 123 of the Labor Code). Part-time workers, both internal and external, are also included in the annual schedule, and their absence in the plans will result in a penalty comparable to a fine for the lack of a vacation schedule in general.

Is it possible to change the vacation schedule?

Changes may be made to the vacation schedule in individual cases, since changes in personnel composition are not excluded during the year; some circumstances may also change for employees due to which they will not be able to go on vacation as scheduled, etc.

When are changes to the schedule required?

If, with the consent of the employee, his vacation is postponed to another time
If an employee is recalled from vacation
When replacing part of the vacation with monetary compensation

When new employees are hired after the schedule is approved, changes to the schedule may or may not be made.

In general, if any changes occur in vacations, it is better to include them in the vacation schedule. Another question is that not all employers even draw up schedules, since they do not conduct personnel records as such or draw up schedules formally.

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For what period must an employee take accrued days off?

You can accumulate labor leave with the right to receive it later for two years, and the employer is obliged to provide these accumulated days before the end of the second year (Article 124 of the Labor Code of the Russian Federation).

But if it so happens that the vacation has accumulated over a period of more than two years, then in this case the rest days do not expire, but it is not a fact that you will be able to take them off, since the Labor Code of the Russian Federation does not stipulate anywhere that the employer is obliged to provide non-vacation days vacations for past years exceeding a two-year period.

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If it is not possible to agree with the employer on the use of these days in kind, then the employee only has the right to count on monetary compensation for vacation days before dismissal.

If you do not take annual paid leave, it is transferred to the next year. If it is not used in the second year, then subsequently it is compensated by a cash payment upon dismissal.

To answer this question, it is necessary to note that certain conditions are met:

The enterprise must have a properly formalized vacation schedule, which clearly states the rest time of all workers.
Management must notify the employee of his upcoming vacation 2 weeks before the start of the vacation. Such notice must be delivered against signature. If a notification is refused, a corresponding act must be drawn up.
An appropriate order with the signature of the employee on his familiarization with the specified document is required. If you refuse to familiarize yourself, a report is also drawn up.
Vacation pay must be paid no later than three days before the start of the vacation.
When an employee goes to work during his vacation, a corresponding act is also drawn up indicating this fact.

After all the above actions, the worker can be brought to disciplinary liability under Art. 192 and art. 193 Labor Code of the Russian Federation. But this is not the best solution.

Alternatively, dismiss the employee with payment of the due compensation, and then rehire him. But it is not advisable to do this on an ongoing basis, since the inspection authorities may have some questions, for example, regarding the infringement of workers’ rights to guarantees for continuous service at the enterprise.

We invite you to read: Are weekends included in vacation?

If an employee refuses to take a vacation, arguing that he does not want to lose earnings, then a civil contract can be concluded with him during his vacation.

How to challenge a vacation schedule?

An employee may be put on vacation in the vacation schedule when he does not want to go on vacation or cannot due to certain circumstances, for example, because he wants to go on vacation with his spouse or he has the right to choose when it is convenient for him to go on vacation, but he is not deprived of rights.

You can challenge the vacation schedule to the labor dispute commission or to the court.

The employee must file a claim in court, formulating his demands, for example, to recognize the vacation schedule as illegal, properly justifying his position.

The court will consider the case in the manner of claim proceedings with hearing both sides, examining evidence in the case and making a decision on the merits of the dispute. If the court comes to the conclusion that the schedule was drawn up in violation, it will accordingly recognize it as illegal in part, since the employee can only apply for the protection of his rights and not agree with the vacation schedule insofar as it concerns his rights.

USEFUL : our lawyer will help you draw up a statement of claim for the protection of labor rights: professionally, profitably and on time

In what order is it provided?

The labor legislation of the Russian Federation does not contain any requirements regarding the sequence of use of labor holidays. In any case, it is worth remembering that first of all it is necessary to use the vacation for the next working year.

This must be done so that it does not go into the accumulated category, since using vacation days over the past years to the detriment of current years loses all sense of eliminating accumulated vacation days.

Therefore, by agreement with management, annual paid leave can be granted for the next working year, and accumulated days can be added to it. These days can also be provided separately by agreement with the employer, at any time.

Complaint regarding employee leave issues

If an employee does not agree with any of the employer’s decisions regarding his leave, he has the right to write a complaint on these issues to the labor dispute commission, the labor inspectorate, or the prosecutor’s office.

When preparing a complaint, the applicant must indicate how his rights are violated by the employer and how they are violated.

A complaint may be investigated and a decision may be made based on the results of the inspection.

If it is established that the employer has violated labor legislation in matters of providing leave to an employee, the employer will be held administratively liable.

There is a schedule, but no vacation

There are situations when paid days off are not provided or are postponed at the initiative of the employer to another period. It is legal. But if there are no grounds, and the boss does not allow him to rest, then a fine for refusing to let the employee go will be issued based on the worker’s first complaint. Additionally, he has the right to demand monetary compensation, the amount of which is determined by agreement of the parties or by the court (Article 237 of the Labor Code of the Russian Federation).

Another option is that the person himself does not want to leave. But according to Art. 124 of the Labor Code of the Russian Federation, it is prohibited not to rest for more than 2 years. To avoid a fine for lack of proper rest, a subordinate should be sent on paid rest by order of the head of the organization, and in case of disobedience, a disciplinary sanction should be imposed. In case of repeated violations, it is permissible to dismiss an employee for ignoring the orders of the manager.

Penalty for failure to provide vacation as scheduled

Failure to provide leave as scheduled is a violation of labor legislation, for which administrative liability is provided under Art. 5.27 Code of Administrative Offenses of the Russian Federation.

When committing the corresponding offense for the first time, the person will be held accountable under Part 1 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation with the imposition of punishment in the form of a warning or a fine in the following amounts:

for officials and individual entrepreneurs – from 1,000 rubles to 5,000 rubles
for legal entities – from 30,000 rubles to 50,000 rubles
For committing a repeated offense, the fines under Part 2 will be:
for officials and individual entrepreneurs – from 10,000 rubles to 20,000 rubles
for legal entities – from 50,000 rubles. up to 70,000 rubles

To avoid a fine for failure to provide vacation as scheduled, it should be rescheduled by agreeing with the employee and by making changes to the vacation schedule. Under certain conditions, vacation may be transferred to another year. At the same time, we should not forget that it is impossible not to provide an employee with leave for more than 2 years in a row and for certain categories of employees.

You can appeal the fine in court. To do this, it is necessary to prepare a complaint against the decision of the labor inspectorate on bringing to administrative responsibility and submit it to the court. Next, take part in the consideration of the complaint, voicing its arguments and wait for the court’s decision.

The grounds for appeal can be very different, including the expiration of the statute of limitations for bringing to justice, the absence of an offense, the insignificance of the committed act.

You can, of course, try to reduce the fine, however, it is unlikely that the labor inspectorate or court will impose a fine lower than that provided for by the sanctions of this article, since the procedure for imposing a fine less than the minimum is regulated by Part 2.2., 3.2. Art. 4.1 Code of Administrative Offenses of the Russian Federation. According to the provisions of this article, a fine below the minimum can be imposed on citizens if the minimum fine for citizens is at least 10 thousand rubles, for officials - at least 50 thousand rubles, for legal entities - at least 100 thousand rubles. Thus, only citizens have a chance to reduce the fine if they are brought to justice under Part 2 of Art. 5.27 Code of Administrative Offenses of the Russian Federation.

Compensation or vacation

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It is possible, and there are only two such cases:

Upon dismissal of an employee. Here the employer pays compensation in full for all accumulated vacation days.
At the request of the worker in relation to that part of the vacation that exceeds 28 calendar days (Article 126 of the Labor Code of the Russian Federation). But do not forget that such replacement is prohibited for some categories of workers:
minors;
workers in dangerous or hazardous work.

We suggest you read: If I’m on vacation and want to quit