Transfer of vacation due to production needs. When it is possible to reschedule vacation at the employee’s initiative - examples of valid reasons, sample documents Rescheduling vacation in what cases

Postponing leave due to business needs is an extreme measure that an employer can take only in strictly defined cases. Let's figure out when this is possible - and who can initiate it.

Labor legislation, defining the rules for employee rest time, states: every worker has the right to rest for at least 28 days once a year. In this case, the moment when an employee should be on vacation is determined by the schedule established at the enterprise. The rest time schedule is brought to the attention of employees by order of the manager - and in the future this act must be executed, and employees must leave annually in strict order.

However, a situation is possible when it is necessary to postpone the vacation at the initiative of the employer. This is due to a situation where, without the presence of a specific employee, the work of an enterprise or organization may stop or be significantly disrupted. In order to reschedule a vacation, the following conditions are necessary:

the situation is exceptional and could not have been foreseen during the preparation and approval of the schedule;
transfer of leave due to production needs is required so that the economic or other activities of the enterprise are not disrupted;
there is the clear consent of the worker that his rest time will be postponed.

If any of the conditions are not met, the employer will not be able to defer the time.

Dates for rescheduling when you can rest

Labor legislation establishes that leave for operational reasons can be transferred to the next year. However, this rule is not strict: the employer has the right to postpone the rest of his employee to another time until the end of the current working year. There are no restrictions here.

The only strict rule regarding cases where it is necessary to delay the time of annual leave is that it must be granted no later than 12 months have passed from the end of the year for which it was granted. Thus, the question of how long a break is allowed is resolved simply: no more than 2 calendar years.

How is the transfer processed?

In the event that it is necessary to reschedule to another month or year, the employer should take the following actions:

Send the employee a document in which a proposal will be made to transfer his rest time to another period.
After the employee expresses his consent, a transfer order is issued.
The employee agrees in writing (puts a mark on the order: “I agree”).

Only after this can the personnel service make changes to official documentation and formalize new rest and work hours for the person.

There is another option when the transfer is carried out at the initiative of the employee. If for some reason he wants to go to work and continue work ahead of time, postponing the remaining days to another year, or does not want to leave at all at the time agreed on the schedule, the employee has the right to apply to postpone the vacation. Subsequently, registration is carried out according to the same rules as in the case when the initiative comes from the employer.

Consent to transfer

Often, employers threaten their employees that they will not give them time to rest by issuing a rescheduling order. How legal is it to delay your vacation?

In fact, such threats from the point of view of labor law are empty words. The fact is that the Labor Code provides for the following rules:

The agreed schedule is mandatory for both parties - both the worker and the management of the enterprise.
If an employee refuses, no one has the right to reschedule vacation without the employee’s consent.

If the management does not want to let the person go, various measures can be applied, from a fine to the reinstatement of the illegally dismissed person, if the departure was counted as absenteeism.

Other transfer options

In addition to production needs, it is permissible to reschedule an employee’s annual rest in the following cases:

If by the time of vacation the employee is on sick leave;
If the rest period coincides with the performance of duties to the state that are associated with legal release from work;
If vacation pay was not paid on time (that is, three days before leaving);
If a person was warned about the time of rest less than 14 days before it began.
In other cases specifically established by law.

Important! The law establishes a rule according to which, within certain limits, freedom of agreement between employees is allowed. Consequently, various types of agreements are permissible, according to which rest time will be transferred within the limits established by law.

The Labor Code of the Russian Federation allows for the transfer of leave at the request of an employee for several reasons:

In case of special circumstances related to caring for a child (for example, if he is very sick), by agreement with the management, it is possible to extend the leave for up to 4 or 4.5 years. But this is a separate topic, because... The legislation currently only considers a three-year period.

Read more about whether you need to write a sample application for transferring vacation to another period according to the schedule and for extension for child care, pregnancy and childbirth, and in connection with sick leave.

Postponement of vacation can be peculiar extension. This is possible if:

during vacation the employee performed government duties. For example, he was at military training, was a member of the election commission, was a juror at a court hearing, etc. for which a subpoena, summons and other relevant documents can serve as supporting documents;
employee during vacation got sick. Having a sick leave certificate in hand, he has the right to turn the days of his illness into additional days of rest (read more about transferring vacation in connection with sick leave).

You can either postpone them to a later time, or extend an already started vacation without going to work on the appointed day.

In the first case, you will need to write a corresponding statement, in the second it will not be needed - you will need sick leave only.

The decision to extend leave should be notified immediately after illness before the first working day. You can go to work on this day don't go out: It will be enough to call in advance and inform about your decision.

The period of temporary incapacity for work is paid in the generally established ok.

In accordance with Article 123 of the Labor Code of the Russian Federation, an employee must familiarize himself with it no less than For two weeks before the start of your vacation, and put your signature.

Read more about the order to extend or transfer leave to another period, for example in connection with sick leave.

Article 123. Sequence of granting annual paid leave

The order of provision of paid vacations is determined annually in accordance with the vacation schedule approved by the employer, taking into account the opinion of the elected body of the primary trade union organization no later than two weeks before the start of the calendar year in the manner established by Article 372 of this Code for the adoption of local regulations.

The vacation schedule is mandatory for both the employer and the employee.

The employee must be notified of the start time of the vacation by signature no later than two weeks before it begins.

Certain categories of employees, in cases provided for by this Code and other federal laws, are granted annual paid leave at their request at a time convenient for them. At the request of the husband, he is granted annual leave while his wife is on maternity leave, regardless of the time of his continuous work with this employer.

These documents must be registered in the relevant journals, and changes must be made to the vacation schedule.

All these formalities must be completed in case the company has examination: orders and modified schedule will protect you from a fine.

To get everything done on time, the employee must hurry up and write an application as soon as possible.

If an employee postpones his vacation to a later date, he must notify his superiors about this before the first day your vacation specified in the schedule.

This date cannot be ignored, otherwise it will also be considered a violation of the schedule and may result in a fine for the company.

You can reschedule your vacation by: earlier or later time of the current year, and . The employee is not entitled to any special privileges in this regard: the very opportunity to rest exactly at the chosen time can be considered a kind of privilege.

The main thing is to think through everything in advance and voice your request to your superiors. as soon as possible. Then all the necessary documents will be prepared on time and there will be no problems with your vacation.

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No one is insured against force majeure, including the head of an enterprise. And it often happens that a vacation planned several months ago needs to be rescheduled.

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Is this possible by law, how to arrange everything correctly and what nuances should you know and remember?

Transferring leave due to production needs is not a rare phenomenon in enterprises and organizations.

Although vacation schedules are drawn up a year in advance - to be precise, no later than two weeks before the start of the new calendar year, that is, before January 1 - after agreement with management, the trade union and the team, emergency circumstances often arise when they changes need to be made.

In this case, the initiator can be both the employer and his subordinate.

What does the law say?

According to the Labor Code of the Russian Federation, the transfer of leave at the initiative of the employer or its extension can be carried out under Articles 124 and 125 of this legislation, but only with the consent of the employee and in the presence of official documents.

They are:

letters of offer to the employee to reschedule vacation;
an order from the institution to amend the previously drawn up vacation schedule;
employee statement.

In each individual case, additional certificates and documents may be required confirming the employee’s disability, difficult working conditions, minor age, etc.

The same article of the Russian Labor Code lists the main and common reasons that may become the basis for adjusting the vacation schedule.

Causes

For what reasons may it be necessary to postpone legal and planned vacation?

These include the following:

If the employee is on official leave while performing government duties, which involves official release from work.
Business trip: the employer urgently needs to send an employee on a business trip, in which no one else, due to competence or authority, can replace him.
If there is a need for the presence of this particular employee at the workplace due to the specifics of the organization’s activities, tax or audit inspections and other special circumstances.

An employee can be recalled from vacation if his absence causes harm to the enterprise or organization, but only with his consent.

Usually, the employer and employee agree among themselves, the employee writes a statement on his own behalf that he wants to reschedule the vacation to another time, and the boss signs it.

Then the rescheduling occurs automatically. But it is still necessary to issue an official order in case of an audit.

In what cases is this not possible?

Transferring regular annual leave is not possible if:

the employee belongs to one of the categories of employees who have the right to leave out of turn and can choose the start date: pregnant and lactating women, mothers raising children under 3 years of age, husbands whose wives are pregnant or on maternity leave, disabled people various degrees, veterans, etc.;
if the employee has not reached the age of majority, that is, 18 years old;
if work activity involves exposure to life-threatening and harmful conditions.

How is the transfer of leave due to production needs processed?

Drawing up an order

The order is drawn up so that appropriate changes are officially made.

The order is written on behalf of the director. It must clearly indicate the reasons why there is a need to postpone the vacation, and instructions must be given to the personnel department employees to make changes to the organization’s vacation schedule and other related documentation. The period for which vacation is postponed may not be indicated.

The order is signed by the director of the organization and the head of the legal department of the organization.

The employee must be familiar with it (which is also indicated in the order and certified by the employee’s signature) and other persons directly related to the change in schedule - for example, personnel department employees.

Sample order

Notification

The Labor Code of Russia does not clearly indicate the requirements for the execution of any of the documents related to the transfer or extension of leave.

All papers are drawn up in any form.

You just need to adhere to the standard details of the application and be sure to certify everything with signatures.

Employee notification

Is an employee application required?

An application from the employee is required if the transfer of leave is to be officially carried out according to all the rules.

It is drawn up in any form: in the “header” the position of the director, his last name and initials, the position, last name and initials of the employee are indicated, the application itself states the date to which the vacation will be transferred, and the employee’s consent to such a transfer.

At the bottom is the date the application was written and the employee’s signature.

Employee statement

A sample document can be downloaded here:

How is the transfer date determined?

The Labor Code of the Russian Federation does not establish any clear requirements for determining new terms and dates.

But at the same time, it is impossible to transfer vacation for a period of more than one year - the employee must use all the days allotted to him within 12 months from the date of transfer or termination of vacation.

The employee has the right to choose the time of his new vacation.

As for vacation pay, there is a small nuance: payments are calculated based on the employee’s average earnings, but are not considered wages.

Thus, if an employee received vacation money and went on vacation, but “didn’t finish” it because he was called to work by his superiors, he does not return the vacation money - according to the law, the employer does not have the right to withdraw it.

For hours and days worked during vacation, the employee's salary is calculated as usual, regardless of whether he received vacation money or not. The recalculation will be carried out during the accrual of vacation pay next year, if the employee does not agree to voluntarily return them to the cash desk.

It is also possible to charge the amount towards the next advance or salary, depending on its size.

What to do if your rights have been violated?

Where can I go if official leave has been postponed without the employee’s consent? First of all, it makes sense to talk with your superiors and find out the real reason for such actions on his part.

It is always easier to try to reach an agreement peacefully than to start a conflict. If the management categorically refuses to meet halfway and discuss this issue, the oppressed employee still has the right to go on vacation according to the schedule and receive the vacation pay he is entitled to for this.

Is it possible to provide for a local regulatory act of an organization in accordance with part one of Art. 124 of the Labor Code of the Russian Federation, transferring an employee’s vacation to another period due to production needs without his consent?

Having considered the issue, we came to the following conclusion:

The employer does not have the right to enshrine in a local regulatory act the rule that, due to production needs, an employee’s vacation can be postponed to another date without his consent.

Rationale for the conclusion:

According to part one of Art. 123 of the Labor Code of the Russian Federation, the priority for granting paid vacations is determined annually in accordance with the vacation schedule approved by the employer, taking into account the opinion of the elected body of the primary trade union organization no later than 2 weeks before the start of the calendar year. Part two of the same norm stipulates that it is mandatory for both the employer and the employee.

As follows from the provisions of Art. 123 of the Labor Code of the Russian Federation, an employee who, by law, cannot determine the period of use of vacation, must go on vacation exactly within the time limits established by the schedule. The employer does not have the right to unilaterally change the date of vacation provision already scheduled without the consent of the employee (decision of the Moscow City Court dated January 20, 2016 N 33-1792/16, determination of the Vologda Regional Court dated August 21, 2013 N 33-3794/2013).

In accordance with part one of Art. 124 of the Labor Code of the Russian Federation, annual paid leave must be extended or transferred to another period determined by the employer taking into account the wishes of the employee in the following cases:

temporary disability of the employee;

the employee performs state duties during his annual paid leave, if the labor legislation provides for exemption from work for this purpose;

in other cases provided for by labor legislation and local regulations.

As follows from the first part of Art. 124 of the Labor Code of the Russian Federation, the employer is obliged to extend or postpone annual paid leave in the cases listed in this norm. In addition to those mentioned in part one of Art. 124 of the Labor Code of the Russian Federation, cases where an employer is obliged to extend or postpone an employee’s vacation can also be established by a local regulatory act of the organization. Thus, the employer in the local act of the organization can provide for other cases in which the vacation should be extended or postponed.

At the same time, when establishing such cases, the employer must take into account that annual paid leave is provided to employees in order to ensure their right to rest (Article 2 of the Labor Code of the Russian Federation).

As the Constitutional Court of the Russian Federation explained in its ruling dated October 23, 2014 N 2302-O, “Article 123 of the Labor Code of the Russian Federation, determining the order of granting paid vacations and the time of their use, is aimed at ensuring the implementation of the constitutional right to rest. Rules on the mandatory vacation schedule and notification employee about the start time of vacation, established by parts two and three of the said article, act as guarantees for the implementation of this constitutional right. Part two of Article 124 of the said Code provides an additional guarantee for the implementation of the employee’s right to annual paid leave - the employee’s right to postpone the vacation in the event of failure by the employer to fulfill the obligation upon notification of the employee about the start time of vacation against signature." Despite the fact that this explanation is given with reference to part two of Art. 124 of the Labor Code of the Russian Federation, in essence it is applicable to the cases provided for in the first part of this article.

Considering what has been said, in our opinion, part one of Art. 124 of the Labor Code of the Russian Federation also provides an additional guarantee for the implementation of the employee’s right to annual paid leave - the employee’s right to reschedule leave if he cannot, for good reason, use the leave within the period specified in the schedule (see also, for example, the appeal ruling of the Krasnoyarsk Investigative Committee for Civil Cases Regional Court dated December 14, 2015 in case No. 33-13706/2015).

At the same time, part three of Art. 124 of the Labor Code of the Russian Federation directly provides that in exceptional cases, when the provision of leave to an employee in the current working year may adversely affect the normal course of work of an organization or individual entrepreneur, it is allowed, with the consent of the employee, to transfer the leave to the next working year. In this case, the leave must be used no later than 12 months after the end of the working year for which it is granted.

We believe that, within the meaning of the given norms in the local act of the organization, as cases in which vacation should be extended or postponed, the employer can only provide for cases where the employee has the right to postpone vacation due to the fact that he cannot, for good reasons. reasons to use vacation within the period specified in the schedule (for example, if it coincides with the period during which the employee, on the basis of a call-up certificate, has the right to use study leave; undergoing a medical examination during the vacation period (in the absence of signs of temporary disability), etc. .).

Judicial practice indirectly confirms this conclusion. Thus, the courts indicate that, according to Art. 124 of the Labor Code of the Russian Federation, the next paid leave can be postponed either at the request of the employee or with his consent; transfer of vacation by the employer on his own initiative without coordinating this issue with the employee is not provided for by the current labor legislation (see, for example, the appeal ruling of the Investigative Committee for civil cases of the Novgorod Regional Court dated April 17, 2013, the appeal ruling of the Investigative Committee for civil cases of the Khabarovsk Regional Court dated October 19, 2012 to case No. 33-6499).

The transfer of leave at the initiative of the employer due to production needs must be carried out in the manner established by part three of Art. 124 of the Labor Code of the Russian Federation, and, accordingly, is possible only with the consent of the employee.

As follows from the question, the employer in the situation under consideration, in fact, intends to enshrine in the local act its right not to provide the employee with paid leave within the period established by the schedule if there is a production need, which obviously does not correspond to the meaning of Art. 124 of the Labor Code of the Russian Federation and worsens the situation of the employee. And, as established by part four of Art. 8 of the Labor Code of the Russian Federation, norms of local regulations that worsen the situation of workers in comparison with established labor legislation are not subject to application.

Last modified: June 2019

The rights of an employee, regardless of what form of ownership the company or organization has, in terms of providing him with annual paid leave (hereinafter referred to as EOO), are guaranteed by the Constitution of the Russian Federation and the Labor Code of the Russian Federation. Such a right, in addition to legislative acts, is secured directly at the enterprise - by order of the manager, director, Collective Agreement, as well as in accordance with the “Personnel Vacation Schedule”. However, in some cases, the employer has the right to initiate the transfer of leave due to production needs.

Legislative justification

In determining the reasons for such a transfer, the Labor Code of the Russian Federation provides for three main factors:

transfer of the SOO at the initiative of the employee himself;
a change in the schedule by decision of the management of a company or institution due to the need that has arisen is associated with production activities, business trips or emergency situations requiring mandatory return of personnel from vacation.
transfer of the EOO due to circumstances that arise that are considered force majeure. These are natural disasters, social unrest, i.e. factors that the company or its employees cannot predict, much less prevent.

In each of the above cases, changes to the EEO schedule can be strictly regulated (to the extent that they do not contradict the Labor Code) by the company’s charter, collective agreement, job description, or management order. In any case, the transfer of SOO, including production necessity, can be carried out only upon reaching a compromise and agreement between the employee and his employer.

Reasons for postponing vacation in special cases

In addition to purely personal reasons for which the period for granting EOO can be changed (Labor Code of the Russian Federation, Article 124), there is also a whole set of objective conditions under which an employee can change his guaranteed leave.

Such reasons include:

If an employee is ill and receives benefits under a temporary disability certificate (sick leave) during the period of the main SOO, then such a main vacation period can be postponed to another date.
Another reason why the period of the main LEO may be changed is the performance by the employee, as a citizen, of any public or state duties that coincided in time with the period of the LEO. This could be, for example, a call to military training for those who are registered as liable for military service. This also includes the employee’s participation in the election commission, in a jury trial, etc.
If an employee is a student of the faculty on a correspondence course at colleges or universities, then he has the right to join the main SOO on a legally guaranteed study leave for the period of the session and passing state exams (defense of the thesis).

As you can see, there are several options for how the LOO period can change, due to reasons that can, under certain conditions, be attributed to production necessity. This does not in any way detract from the employer’s right to optimize such deadlines in the interests of the company.

Transfer of an employee's main leave at the initiative of the employer

In order to transfer an employee’s EOO due to production needs, the employer must not only have, in his opinion, compelling reasons, but also comply with a number of conditions that are stipulated in the Labor Code of the Russian Federation, in Art. 124.

These conditions are:

The employee is an adult - i.e. aged 18 years or more.
An employee’s workplace or the entire enterprise falls under the definition of production with harmful or dangerous working conditions. This is recorded by industry orders and regulations of the Ministry of Health and Social Development. This also includes areas that are equated to regions of the Far North and territories with difficult climatic conditions.
The transfer of SOO at the initiative of the employer can be carried out only if there is the consent of the employee.
The transferred EOO must be used no later than the following year.

In addition to these main reasons and motives for which the employee's EOO schedule may be changed, this also occurs when:

the company or enterprise lacks funds to pay vacation benefits, i.e. due to the lack of vacation funds, the EOO may be postponed.
an employee has the right to change the terms of the SOO if his employer informed him about this less than 2 weeks in advance, which is directly regulated by the Labor Code of the Russian Federation (p. 124).

In both cases, management bears responsibility for such a transfer of EOO, due to the fault of the company.

How to transfer leave due to production needs?

In order for an employee’s vacation to be postponed to another period, or to be changed, or even to be withdrawn from the EOO, in addition to the desire and consent of the parties, the following formal actions must be completed.

The company management or the human resources department prepares an order to change the vacation schedule, which is approved annually. This order is signed by the manager, entered into the appropriate register or book of orders, and brought to the attention of each employee personally against signature for familiarization.

Company order

If an employee is recalled from leave, he or she must be given formal notice in writing. Those. A simple phone call is not enough for this. A written notice must be prepared and given to the employee being recalled from the EOO.

Written Notice

If a production need arises, then an employee’s application to transfer his SOO is, as a rule, not required. Everything is decided by a unilateral order from the organization’s management and the employee’s consent is not necessary.

However, there are cases when an employee may ask to change the vacation period or add the unused part (calendar days) to another vacation period for the next year. The application is written to the director of the company or organization.

Employee statement

In addition to these three important points accompanying the formal side of the transfer of SOO for production reasons, there are two more issues that you need to know about.

The first point is the deadline or date for rescheduling the vacation. Nowhere is there any indication of what the appointment date should be. Usually the employee chooses the best option for him. Again, everything is decided when discussing such issues with the employer.

The second point is related to the payment of vacation pay. For example, an employee, going on vacation, received a full cash benefit for the entire period of the Unified Society. If the employer called the employee back from vacation, i.e. he actually didn’t finish it, then should he return the amount that is associated with the unused days of the EOO? The law in this regard clearly states that vacation money is not a refundable cash benefit and if the vacation (or part thereof) is unused, it is not returned by the employee.

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