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Labor Code. If the vacation falls on a weekend or holiday, how to calculate vacation pay. Except for weekends and holidays.

Every employee has the right to rest, which is reflected in the provisions of the Constitution of the Russian Federation. In Art. 113 of the Labor Code of the Russian Federation confirms the right of employees to rest on holidays and their days off. Involving them in additional work activities is possible if written consent to leave is obtained in advance. However, employees may refuse additional processing during non-working hours.

Work during additional hours must be documented accordingly. Necessary:

obtain the employee’s written consent to go to work during holidays or weekends;
familiarize the employee with the conditions of severance, including the right to refuse work in free personal time;
notify the trade union body (if there is one);
issue an order to perform overtime work, indicating the reasons, duration and persons involved.

Sometimes obtaining the employee’s consent to perform labor responsibilities not required on weekends. These are possible subject to the following conditions in accordance with Art. 113 Labor Code of the Russian Federation:

if it is necessary to prevent the occurrence of unforeseen circumstances that could lead to catastrophic consequences, including accidents or damage to the property of the enterprise;
the need to perform the work arose due to an emergency situation, including caused by a natural disaster or martial law.

An exception is made for pregnant women. They cannot be involved in such work (Article 259 of the Labor Code of the Russian Federation). Other categories of employees (disabled people, women with young children under 3 years old) are involved in overtime work only with their consent. It is prohibited to use it on weekends and by minors.

Possible options for recruitment in free time must be specified in the collective agreement and other internal local acts.

Working conditions on weekends and holidays

If there is a need for overtime work, management issues an order to involve employees who have agreed to perform the work. It records the start date for overtime work on weekends. In the event of emergency situations, going to work on weekends and holidays can also occur by verbal order of management (before the order is issued).

Carrying out work on weekends by disabled people or women who have children under 3 years of age is possible not only with their written consent, but also provided there are no medical contraindications to working overtime.

PLEASE NOTE! If an employee works under a fixed-term employment contract lasting up to 2 months, it will not be possible to involve him in work on weekends without obtaining written consent, even in the event of an emergency (Article 290 of the Labor Code of the Russian Federation).

Pay for work on days off

Employees are entitled to compensation for the use of personal time spent working overtime. They have the right to choose:

or take an additional day off and receive payment for work on a day off in a single amount;
or agree to monetary compensation in double the amount based on the current tariff rate or in case of piecework payment (Article 153 of the Labor Code of the Russian Federation).

For those employees who are entitled to a fixed monthly salary, payment for work on weekends and holidays is made based on the daily or hourly rate, if the monthly working time standard (according to the Labor Code of the Russian Federation) is not exceeded. If the monthly working time limits are exceeded, payment for additional work on holidays and weekends is calculated at double the rate.

If an employee has requested time off, he must write a corresponding application.

The rules for calculating additional compensation for weekends and holidays do not apply to those whose regular schedule includes the possibility of working on holidays and weekends: employees with irregular working hours or shift work.

All additional conditions can be specified in the internal regulations on remuneration, the procedure for filling which you will learn from the article “Regulations on remuneration of employees - sample 2019 - 2020” .

Sample consent to work on a day off

The forms of the document confirming the receipt of the employee’s consent to work extra time are not approved by law. Each enterprise has the right to develop its own form.

A sample of an employee’s written consent to work on weekends and holidays can be downloaded on our website.

Results

In some situations work activity during periods intended for rest (holidays, weekends), it is necessary to maintain normal operation of the enterprise. However, in most cases, employees must voluntarily agree to perform work duties outside of normal working hours. Additional labor on weekends for some categories of employees (pregnant women, minors) is prohibited.

Non-working holidays in Russian Federation are:

If a day off coincides with a non-working holiday, the day off is transferred to the next working day after the holiday, with the exception of weekends coinciding with non-working holidays specified in paragraphs two and three of part one of this article. The Government of the Russian Federation transfers two days off from the number of days off that coincide with non-working holidays specified in paragraphs two and three of part one of this article to other days in the next calendar year in the manner established by part five of this article.

Employees, with the exception of employees receiving a salary ( official salary), for non-working holidays on which they were not involved in work, additional remuneration is paid. The amount and procedure for payment of the specified remuneration are determined collective agreement, agreements, local normative act adopted taking into account the opinion of the elected body of the primary trade union organization, employment contract. Amounts of expenses for the payment of additional remuneration for non-working holidays are included in the full amount of labor costs.

Presence of non-working days in a calendar month holidays is not a reason to reduce wages employees receiving a salary (official salary).

For the purpose of rational use by employees of weekends and non-working holidays, weekends may be transferred to other days by federal law or a regulatory legal act of the Government of the Russian Federation. In this case, the regulatory legal act of the Government of the Russian Federation on the transfer of days off to other days in the next calendar year is subject to official publication no later than a month before the start of the corresponding calendar year. The adoption of regulatory legal acts of the Government of the Russian Federation on the transfer of days off to other days during the calendar year is permitted subject to the official publication of these acts no later than two months before the calendar date of the established day off.

If the vacation falls on holidays, what should the company do: count these days toward vacation time or keep them for the employee for the future? What to do if vacation falls on public holidays - this question can also be of key importance for employees who are deciding which period to prefer for rest, because vacation is often taken immediately after public holidays or in the intervals between them (for example, from 1 to 15 May).

Determining the number of days of annual leave: general rules

The Labor Code of the Russian Federation establishes the right of all employees who have worked for a company for at least six months to take off the vacation days due to them (Article 115 of the Labor Code of the Russian Federation). In order to go on vacation, an employee must write an application addressed to the manager.

For information on how to correctly compose such a statement, see the article.

The standard employee leave is 28 calendar days per year (Article 115 of the Labor Code of the Russian Federation). There are 12 months in a year, so for 1 month worked, the employing company must accrue approximately 2.33 days of vacation to the employee.

Therefore, in order to understand how many days of vacation a particular specialist is entitled to, you need to know exactly how many months he had already worked in the organization at the time he decided to take a vacation.

Please note! These months must be calculated not in accordance with the calendar, but starting from the day the specialist was hired by the company. For example, if a specialist’s first working day was March 10, then his first working month ends on April 9 (Rostrud letter No. 1519-6-1 dated December 18, 2012).

if a specialist has worked more than half of the total number of working days of the month, such month is counted as full when calculating the vacation period;
if less than half the days are worked, such a month is excluded from the vacation period.

When all the necessary information is known to the company, all that remains is to calculate the number of vacation days due to the specialist in the current year, using the formula:

Day par. = Month neg. × 2.33 - Day of departure. Spanish,

where: Day pr. — the number of vacation days that the employee has the right to take off;

Mes neg. - the total number of months (rounded according to the above rules) during which the specialist actually worked;

Day of departure Spanish - days of vacation that the employee has already taken off earlier.

In some cases, instead of taking unused vacation days off, an employee may ask for monetary compensation.

If an employee decides to leave the company, it is important for him to understand what compensation for vacation he can expect.

Pay attention! Despite the fact that vacation time is calculated in working days and months, the company provides vacation itself in calendar days. As a result, the period when the specialist was on vacation may include weekends and holidays.

What to do if your vacation falls on holidays

If an employee goes on vacation, for example, for 14 days (from 1 to 14 November), 4 of which are days off (Saturday and Sunday), and 1 is a public holiday (4 November), is the weekend and the day of the holiday included in the total duration vacation?

As follows from Art. 120 of the Labor Code of the Russian Federation, vacation is calculated in calendar days, for each of which the company must pay compensation. Such compensation is calculated based on data on the specialist’s average daily earnings. This means the average salary for 1 calendar day, not a working day (Article 139 of the Labor Code of the Russian Federation).

The legislator established such a mechanism to ensure that employees do not spread their vacation over workdays, but rather take the entire required calendar period, including generally established days off.

Example

If he spreads out his vacation and takes rest days only for the periods from April 4 to 8 and from April 11 to 15 (i.e., only 10 days of vacation), he will receive (provided that his average earnings per day is 1,000 rubles. ) compensation in the amount of: 10× 1,000 = 10,000 rub.

If he takes calendar days of vacation for the entire period from April 4 to April 17, he will already receive vacation pay: 1,000× 14 = 14,000 rub.

If there are any standard weekends during the vacation period, they should also be taken into account by the employer company as days of vacation taken by the employee.

The situation is different with the holidays. Art. 120 of the Labor Code of the Russian Federation requires that non-working holidays be deducted from a specialist’s vacation. In other words, if, for example, an employee takes a vacation from November 1 to November 14, then in fact he will only take 13 days off, since November 4 is a public holiday. And the 1 remaining day of vacation will remain with him for the future.

However, often days off are added to the holiday, moved from other days when the holiday already falls on a day off (for example, in 2019, the day off from Saturday and Sunday, January 5 and 6, was moved to Thursday and Friday, May 2 and 3, and also from Saturday 23 February to 10 May).

It turns out that if an employee is on vacation during this period, then along with the holiday and standard days off, his vacation also includes the weekends postponed from the holiday.

The question arises: such a postponed holiday is also excluded from vacation days, like a regular holiday?

In paragraph 2 of the recommendations of Rostrud on compliance with the norms of the Labor Code of the Russian Federation when providing non-working holidays (approved by protocol dated 06/02/2014 No. 1), it is explained that when postponing a day off that coincides with a holiday, it is the day off that is postponed, and not the holiday (which coincides with on a specific date, as opposed to a weekend). Consequently, only holidays are not included in the duration of vacation, but rescheduled weekends, like regular ones, are taken into account in the number of vacation days taken by a specialist.

Example

IfAlekseev wants to take 2 weeks of vacation, from May 1 to May 14, 2019, then the company will count 12 days as time off for him, since May 1 and 9 are a public holiday, which is excluded from vacation days.

But May 2, 3 and 10 are rescheduled days off, therefore, like standard weekends (May 4, 5, 11, 12), the employer will consider them as vacation days off.

For a calendar with holidays and weekends in 2019, see the material "Production calendar for 2019 (5-day work week)".

Vacation at your own expense, additional and study leave on holidays

If a holiday falls on an employee’s regular annual leave, then, as already mentioned, such a day must be deducted from the duration of the employee’s vacation. But what if the holiday fell on some other type of vacation?

As follows from the Labor Code of the Russian Federation, employees whose working conditions differ in some way from the standard (for example, involve a special nature of work or are associated with factors that negatively affect the health of a specialist), in addition to annual leave, are entitled to additional leave (Articles 116 -119 of the Labor Code RF). Their purpose is to compensate the employee for damage caused by specific working conditions. But at its core, this is the same paid leave that must be provided by the company every year.

Important! For additional leave, the rule is similar to the case with simple leave. annual leave: holidays are deducted from them, but weekends (including postponed ones) are not (Article 120 of the Labor Code of the Russian Federation).

If an employee goes on unpaid leave at his own expense, then this rule does not apply to him. Vacation at your own expense is provided for the number of days that the employee requires; the company does not pay vacation pay for it, and therefore there is no point in extending it for holidays that fall out.

But, for example, study leave for employees who decide to take higher education, must be paid by the employer (Article 173 of the Labor Code of the Russian Federation). Does this mean that holidays falling on such a vacation should not be taken into account in its duration?

Based on labor legislation, it can be argued that this rule does not apply to study leave. In paragraph 14 of the Decree of the Government of the Russian Federation “On the calculation average salary» dated December 24, 2007 No. 922, it is directly stated that in the case of study leaves, the company must pay for all days specified in the call certificate educational institution, including holidays that fall on vacation. This means that all holidays that fall on study leave are also considered days off.

Results

Companies should remember that if vacation falls on holidays, such holidays should be excluded from the duration of the vacation. These days remain with the employee for the future. Weekends, including those postponed from holidays, are not excluded, but are taken into account in the count of used vacation days.

However, this rule is only valid for the usual annual and additional leave. If a specialist takes a vacation at his own expense or a study leave, it does not matter whether they fall on holidays or not. You need to take as much time off as was allowed in advance.

All employees are provided with days off (weekly uninterrupted rest). With a five-day work week, employees are given two days off per week, and with a six-day work week - one day off.

The general day off is Sunday. The second day off in a five-day work week is established by a collective agreement or internal rules labor regulations. Both days off are usually provided in a row.

For employers whose work suspension on weekends is impossible due to production, technical and organizational conditions, days off are provided on different days of the week in turn to each group of workers in accordance with the internal labor regulations.

Comments to Art. 111 Labor Code of the Russian Federation

1. The employer is obliged to provide all employees with compulsory weekly rest, the duration of which cannot be less than 42 hours (Article 110 of the Labor Code).

The general day off for both 5- and 6-day working weeks is Sunday. Due to the fact that both days off in a 5-day work week are usually provided in a row, the second day off in practice, in accordance with the collective agreement or internal labor regulations, is Saturday or Monday.

When recording working hours in summary (Article 104 of the Labor Code), days off are provided to employees in such a way as to ensure the standard duration of the weekly uninterrupted rest(Article 110 of the Labor Code) on average for the accounting period.

2. With a 5-day working week, employees are provided with 2 days off each calendar week, except for those weeks when on one of the days off the schedule is compensated for shortfalls up to the standard working hours. This occurs when the sum of hours for 5 work shifts is less than the weekly norm. The shortfall is compensated on one of two days off, which is declared a working day according to the schedule. Typically, the shortfall is repaid as it accumulates during the accounting period.

For all workers, both regular and reduced working hours, schedules must be maintained. annual balance working and non-working time.

The specific duration of weekly rest is determined by the type of working week and work schedule. With a 6-day working week, the duration of weekly rest corresponds to the established minimum.

With a 5-day work week, weekly rest exceeds 42 hours, since workers take 2 days off. If, due to production conditions, it is impossible to provide 2 days off in a row, then the second day of weekly rest is established in accordance with shift schedules or internal labor regulations.

3. If a day off coincides with a non-working holiday, the day off is automatically transferred to the next working day after the holiday (Article 112 of the Labor Code).

In connection with numerous questions related to the duration of work on a day off, transferred to a working day due to a holiday, the Russian Ministry of Labor clarified: in cases where, in accordance with a decision of the Government of the Russian Federation, a day off is transferred to a working day, the duration of work on this day (former day off) must correspond to the duration of the working day to which the day off was transferred (Resolution of the Ministry of Labor of Russia of February 25, 1994 No. 19 “On approval of the explanation “On the duration of work on a day off, postponed due to a holiday to a working day”).

4. Article 262 of the Labor Code provides for the right of one of the parents of disabled children to be provided, upon his written application, with 4 additional paid days off per month, which can be used by one of the named persons or divided among themselves at their discretion.

According to the clarification of the Ministry of Labor of Russia and the Federal Social Insurance Fund of the Russian Federation dated April 4, 2000 N 3/02-18/05-2256 “On the procedure for providing and paying additional days off per month to one of the working parents (guardian, trustee) to care for disabled children” 4 additional paid days off for caring for disabled children and people with disabilities from childhood until they reach the age of 18 are provided per calendar month to one of the working parents (guardian, trustee) upon his application and are issued by order (instruction) of the administration of the organization on the basis of a certificate from the authorities social protection population about the child's disability, indicating that the child is not being kept in a specialized children's institution (belonging to any department) with full state support. The working parent also submits a certificate from the other parent’s place of work stating that at the time of application, additional paid days off in the same calendar month were not used or were partially used.

In cases where one of the working parents has partially used the specified additional paid days off in a calendar month, the other working parent in the same calendar month is provided with the remaining additional paid days off for care.

Summarization of additional paid days off provided for caring for disabled children or people with disabilities since childhood, for 2 months. or no longer permitted.

Additional paid days off not used in a calendar month by a working parent (guardian, custodian) due to illness are provided to him in the same calendar month, subject to the end of temporary disability in the specified calendar month.

5. For the provision of additional days off to persons combining work with study, see Art. Art. 173, 174 Labor Code and comments to them.

6. Women working in rural areas are given, at their request, 1 additional day off per month without pay (Article 262 of the Labor Code).

7. Employees on a business trip use weekly rest days at the place of the business trip, and not upon returning from it, because they are subject to the work and rest time regime of the organization that sent them. The exception is when, by order of the employer, the employee goes on a business trip on a day off; then, upon returning from it, he is given another day of rest.

In practice, this procedure is also applied in cases of going on a business trip by order of the employer on a public holiday.

8. In organizations where work cannot be interrupted due to the need to serve the population (shops, enterprises consumer services, theaters, museums, etc.), days off are set local authorities self-government. When recording working hours in a summarized manner, weekly rest time is also summed up and provided on average for the accounting period.

9. An additional monthly day off may be granted without pay upon written application to one of the parents (guardian, trustee, foster parent) working in the districts Far North and in equivalent areas with children under the age of 16.

Non-working holidays in the Russian Federation are:

Employees, with the exception of employees receiving a salary (official salary), are paid additional remuneration for non-working holidays on which they were not involved in work. The amount and procedure for payment of the specified remuneration are determined by the collective agreement, agreements, local regulations adopted taking into account the opinion of the elected body of the primary trade union organization, and an employment contract. Amounts of expenses for the payment of additional remuneration for non-working holidays are included in the full amount of labor costs.

The presence of non-working holidays in a calendar month is not a basis for reducing wages for employees receiving a salary (official salary).

Commentary to Art. 112 Labor Code of the Russian Federation

1. Unlike other holidays, professional holidays and memorial dates on non-working holidays, no work is performed.2. Attracting employees to work on non-working holidays is possible with the payment of additional remuneration in the amount and manner determined by this article, and only in exceptional cases (see commentary to Article 113 of the Labor Code).3. The transfer of weekends and non-working holidays to other days is carried out in the manner established by the Government of the Russian Federation.

Judicial practice under Article 112 of the Labor Code of the Russian Federation

Decision of the Supreme Court of the Russian Federation dated 02/08/2006 N GKPI05-1644

By virtue of Part 2 of Art. Labor Code of the Russian Federation, if a day off coincides with a non-working holiday, the day off is transferred to the next working day after the holiday.

It follows from this that the specified norm of the Code establishes a mechanism for automatically transferring days off when they coincide with holidays.

Determination of the Supreme Court of the Russian Federation dated April 27, 2006 N KAS06-123

In support of the stated requirement, E. referred to the inconsistency of paragraph 2 of paragraph 1 of the explanation with the labor legislation of the Russian Federation (in particular, part 2 of Article of the Labor Code of the Russian Federation) and the restriction of his right to an equal number of days of rest compared to other employees.

Review of judicial practice of the Supreme Court of the Russian Federation dated 02/09/2005

On amendments to the article of the Labor Code of the Russian Federation

Federal law adopted State Duma December 24, 2004 (SZ RF 2005, N 1 (part 1) art. 27)

On the entry into force of the Town Planning Code of the Russian Federation

Determination of the Supreme Arbitration Court of the Russian Federation dated June 29, 2009 No. VAS-6676/09 in case No. A32-911/2008-16/6

Since 01/01/2008, the last day for filing a claim, is a non-working holiday, and also taking into account that 01/05/2008 is a holiday and fell on a Saturday (day off), and in accordance with the clarification of the Ministry of Labor of the Russian Federation dated 12/29/1992 N 5 if a weekend and a holiday coincide, the day off is transferred to the next working day after the holiday, that is, 01/05/2008 is transferred to 01/08/2008. Therefore, the first working day is 01/09/2008.

Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 15, 2009 N 6676/09 in case N A32-911/2008-16/6

The article of the Labor Code of the Russian Federation establishes that January 1, 2, 3, 4, 5, 7 are holidays non-working days.

Since 01/01/2008, the last day for filing a claim, is a non-working holiday, and 01/05/2008 is a holiday and fell on a Saturday (day off), in accordance with the explanation of the Ministry of Labor of the Russian Federation dated 12/29/1992 N 5 that that if a weekend and a holiday coincide, the day off is transferred to the next working day after the holiday; 01/05/2008 was postponed to 01/08/2008. Therefore, the first working day was 01/09/2008.

Decision of the Supreme Court of the Russian Federation dated January 31, 2011 N GKPI10-1645

In accordance with part five of article of the Labor Code of the Russian Federation, for the purpose of rational use by employees of weekends and non-working holidays, the Government of the Russian Federation has the right to transfer weekends to other days. In this case, the regulatory legal act of the Government of the Russian Federation on the transfer of days off to other days in the next calendar year is subject to official publication no later than a month before the start of the corresponding calendar year. The adoption of normative legal acts on the transfer of days off to other days during the calendar year is permitted subject to the official publication of these acts no later than two months before the calendar date of the established day off.

Determination of the Constitutional Court of the Russian Federation dated October 19, 2010 N 1302-О-О

HIS CONSTITUTIONAL RIGHTS ARTICLE OF THE LABOR CODE

RUSSIAN FEDERATION

The Constitutional Court of the Russian Federation, composed of Chairman V.D. Zorkin, judges K.V. Aranovsky, A.I. Boytsova, N.S. Bondar, G.A. Gadzhieva, Yu.M. Danilova, L.M. Zharkova, G.A. Zhilina, S.M. Kazantseva, M.I. Cleandrova, S.D. Knyazeva, A.N. Kokotova, L.O. Krasavchikova, S.P. Mavrina, N.V. Melnikova, Yu.D. Rudkina, N.V. Selezneva, O.S. Khokhryakova, V.G. Yaroslavtseva,

Determination of the Supreme Court of the Russian Federation dated March 10, 2011 N KAS11-87

On January 31, 2011, the Supreme Court of the Russian Federation decided to refuse the application. In his cassation appeal, O. asks for the court decision to be canceled and for a new decision to be granted to satisfy his application, citing the court’s incorrect application of substantive law. He believes that the court interpreted the law broadly, concluding that it is possible to increase the length of the working week beyond 40 hours a week. The limitation on the length of the working week is in no way connected with the total working time per month or other longer period of time. The court did not take into account that the right to postpone days off in accordance with the article of the Labor Code of the Russian Federation is granted to the Government of the Russian Federation only for the purpose of rational use by the employee of weekends and non-working days. There is no evidence in the case confirming that the postponement of the day off provided for by the contested Resolution serves to achieve this goal.

Determination of the Supreme Court of the Russian Federation dated August 31, 2011 N 49-11-57

Dulov S.K. appealed to the Supreme Court of the Republic of Bashkortostan with an application to invalidate paragraphs 3 and 4 of paragraph 1 of this article, citing a contradiction with the Constitution of the Russian Federation, the Constitution of the Republic of Bashkortostan, articles , , , , of the Labor Code of the Russian Federation, article 3 Federal Law dated September 26, 1997 N 125-FZ “On freedom of conscience and religious associations.”

Resolution of the Presidium of the Supreme Court of the Russian Federation dated December 21, 2011 N 20-ПВ11

In the supervisory complaint, the State Assembly - Kurultai of the Republic of Bashkortostan asks to cancel the ruling of the Judicial Collegium for Administrative Cases of the Supreme Court of the Russian Federation dated August 31, 2011 and to uphold the decision of the Supreme Court of the Republic of Bashkortostan dated June 27, 2011, since the Judicial Collegium for Administrative Cases of the Supreme Court The Russian Federation made an unfounded conclusion that the legislator of the Republic of Bashkortostan exceeded its rule-making competence. The judicial panel incorrectly interpreted the provisions of paragraph 7 of Article 4 of the Federal Law "On Freedom of Conscience and Religious Associations", which provides for the right of the relevant government bodies in the Russian Federation in the relevant territories, at the request of religious organizations, to declare religious holidays non-working (holiday) days. The conclusion of the Board that this norm does not indicate the rule-making competence of the constituent entities of the Russian Federation on this issue was made without taking into account the requirements of Part 3 of Article 5, Articles 11, 72, 76, 77 of the Constitution of the Russian Federation, Article 1 of the Federal Law "On general principles organizations of legislative (representative) and executive bodies state power of the constituent entities of the Russian Federation." The supervisory complaint also points to the erroneous conclusions of the Board, which consists in the fact that the challenged norms contradict the norms labor legislation, in particular the articles of the Labor Code of the Russian Federation, and also that there is uncertainty in understanding the provisions of paragraph 7 of Article 4 of the Federal Law “On Freedom of Conscience and Religious Associations”.

Ruling of the Supreme Court of the Russian Federation dated May 23, 2012 N AKPI12-565

Orlova Yu.V. contacted Supreme Court of the Russian Federation with a statement in which she asks to invalidate the contested normative legal act, as adopted in violation of the publication period established by part five of the Labor Code of the Russian Federation and violating her right to rest.