Awara Russian Labor Law Guide: Holidays, Weekly Breaks and Vacations (Chapters 11-12)

Awara Russian Labor Law Guide: Holidays, Weekly Breaks and Vacations (Chapters 11-12)

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This article is an excerpt from Awara Russian Labor Law Guide written by our leading labor law lawyers. It gives a description and analysis of major legal issues that may affect those who want to conduct a business in Russia. This Guide will certainly serve as a reliable aid in going through this maze of regulative acts and decisions and help the reader to avoid gross mistakes that might result in significant but quite unnecessary losses.

 

Sundays and National Holidays

Sunday is a general holiday for all employees in Russia. The other weekly holiday (in a 5-day week) can be set locally in the internal working rules or collective agreement. Both holidays should, as a rule, be granted in a row one after the other (Art 111 Labor Code). The working schedule will have to foresee a weekly break of a minimum uninterrupted duration of 42 hours (Art 110 Labor Code).

If suspension of work on the weekend is impossible due to production and technical-organizational conditions, days off can be made available on different days of the week for each group of employees under the rules of the internal working rules.

Certain categories of workers, according to law, must be given extra days off. For example, 4 additional paid days off per month for the care of children with disabilities are provided one of the parents; one unpaid day off per month is given to women working in rural areas (Art 262 Labor Code). One unpaid day off per month may also be granted to one parent working in the Far North and comparable areas, who has a child under the age of 16 years (Art 319 Labor Code). Additional days off can be provided in the main job, and in combined work^[1].

The National Holidays (Art 112 Labor Code)   National holidays (Non-Working or Bank holidays) in Russia are:
January 1-6 and 8January 7 February 23 March 8 May 1 May 9 June 12 November 4	New Year HolidaysOrthodox Christmas Day of the Defender of the Country International Women’s Day Springtime and Labor Day Victory Day Day of Russia Day of People’s Unity

When a national holiday occurs on a Saturday or Sunday, those days are compensated by extra holidays on the following day after the national holiday.

The Russian Government has the right, which it frequently exercises, to announce a Saturday and Sunday (two days) as workdays and to compensate this by announcing any workdays as a holiday in order to allow for longer leaves in connection with a national holiday. This decision of the Government to move days off to other days in the next calendar year shall be officially published not later than one month before the relevant calendar year (Art 112 Labor Code).

Moving days off applies to all workers, regardless of various modes of work schedule and time off. However, for employers for whom the suspension of work on non-working holidays is not possible for production and technical-organizational reasons (e.g., continuously operating production, daily servicing of the population, etc.), moving of days off is not carried out^[2].

For employees receiving salary, full payment of salary is preserved, regardless of the number of public holidays in the month, while under another system of labor remuneration employees receive additional compensation for non-working public holidays in which they were not required to work.

Work on Sundays, national holidays and other regular days off is prohibited according to the general rule. In exceptional cases, the employer is entitled to require the employee to work on weekends and public holidays without his consent (for example, to prevent a disaster), or with his consent in the case of having to perform unforeseen work where the future normal operation of the organization depends on its urgent implementation (Art 113 Labor Code).

Requiring weekend and public holiday work by employees with disabilities, and women with children under the age of three years, is permitted only on the condition that it is not harmful to them for health reasons. Also, they must be informed, against signature, of their right to refuse such work.

Working a weekend day or public holiday is paid at least double the usual amount (Art 153 Labor Code), or can be compensated by giving the employee another day off at the request of the employee. In this case, the employee is provided a full day off, and not time off in proportion to the number of hours of time worked during the weekend or non-working holiday^[3].

For employees who have entered into a labor contract for a period of up to two months, only one form of compensation for work on weekends or non-working holiday is provided for – pay of at least double the usual amount (Part 2, Art 290 Labor Code).

In the case of granting another day off for working on a weekend or non-working holiday, pay is at the normal rate, and the day off is not compensated. A collective agreement, local act, or labor contract may increase compensation for work on weekends and public holidays (Art 153 Labor Code).

The requirement to work is carried out by written instruction of the employer.

Annual Leave (Vacation)

General Information on Vacation

Vacation or annual leave can be granted to the employee once a year. There are no legislative prescriptions as to the time of the year when the vacation must be granted and used.

The right to full vacation is acquired by working a full year (or, to be more precise, 11 months). It entitles the employee to 28 vacation days. Weekends are included in this number. National holidays during the vacation are not included, nor are they paid for, thus extending the actual vacation period (Art 120 Labor Code).

Additional vacations may be granted voluntarily by the employer or under special mandatory provisions of the law (Arts 116, 120 Labor Code). Under such special provisions additional time off is granted to:

• Employees working under harmful (level 2-4 of harmfulness) or hazardous conditions, determined as a result of special evaluation of the workplace, Art 117 Labor Code. The minimum number of additional days off is 7;

• Special categories of workers (list of eligible professions and length of additional vacation is set by the federal government), Art 118 Labor Code;

• Employees with irregular working hours (Arts 116, 119 Labor Code) The minimum number of additional days off is 3;

• Employees working in the Far North and regions with similar conditions have the right to 24 and 16 additional days off, respectively;

• In other cases provided for by the Labor Code and special legislation.

The procedure for granting additional time off should be set out in the internal working rules.

If an employer independently and voluntarily establishes additional holidays, the procedure and terms of their provision are determined by collective agreements or local acts (Art 116 Labor Code).

Despite the general rule that an annual paid vacation can only be granted after six months of work, the employee is entitled to 2.33 vacation days for every month of work. So, if a labor contract is terminated before the vacation starts, compensation for the unused vacation must be calculated and paid to the employee.

Employees who have entered into a labor contract for a term of up to two months, as well as seasonal employees, receive two days of paid leave for each working month (Arts 291, 295 Labor Code).

The right to take paid annual leave for the first year of work is granted to the employee after six months of continuous work. The employer, with the consent of the employee, may grant vacation earlier (Art 122 Labor Code). In certain cases, the employer even has an obligation to grant vacation before completion of the 6-month period upon request by the employee (see sections on Women and Youth Labor).

As the vacations of all employees for each calendar year are determined by a vacation schedule adopted according to a special procedure (Art 123 Labor Code), an employee who began working for the employer during the calendar year, in practice, is often deprived of a vacation. In accordance with Art 123 Labor Code, the employee is entitled to request leave after 6 months of work, regardless of the vacation schedule.

Vacation in subsequent years may be granted anytime during the year, even before the vacation days have been formally earned, according to a vacation schedule set by the employer.

The right to vacation is calculated in accordance with all actual workdays. The law provides some additional clarifications regarding what time is to be included in the calculation (Art 121 Labor Code):

1. Time of actual work.
2. The time when the employee did not work, but his position was reserved for him, including the time of his annual paid leave and other appropriate leisure time.
3. Absence due to disputed termination of the labor contract after reinstatement of employee to his job.
4. Periods of the employee’s suspension from work as a result of his failure to pass mandatory medical inspection, but not through his own fault.
5. Time provided at the request of the employee for leave without pay not exceeding 14 calendar days during the work year.

The law also gives specific guidance as to which time does not count towards cumulative right to vacation. Such time includes:

1. Absence without a valid reason.
2. Time for parental leave until the child reaches the age set by law.

 Postponement and Prolongation of Vacation

Under Art 124 Labor Code, the annual vacation (vacations) can be shifted to the following year in “exceptional cases” when the regular vacation may be detrimental for the work of the organization. The employee’s consent for this is necessary. The vacation shifted thus must be granted during the next work year, not later (work year is individual for every worker and starts with the beginning of his work in the company).

It is prohibited not to grant a vacation for two years in a row. But this means that the vacation from the 1^st year can be shifted to the 2^nd year, whereas the vacation earned during the 2^nd year can be shifted to the 3^rd, and so on. The situation, in fact, is the same as if the week from the first year was shifted directly to the third. In this manner, the employer may transfer the days of vacation and enjoy greater flexibility, but the employee’s consent is necessary at every step. The resulting rule is this: the employer may transfer and accumulate days up to a certain level, but he must be careful that in the current year the employee would have no fewer the number of actual vacation days than the number of days which had been saved from the previous year. In this case, the employer would always be in a position to claim that the days saved in the previous year have been used by the employee in the current year. Evidently, under this system the total number of days saved from previous years cannot exceed the statutory number (28) without risk of finding oneself on the wrong side of the law.

An employee under 18 years old and employees working in harmful and hazardous conditions must be granted annual vacation in any event – no transfer is possible.

The employer has an obligation to prolong or transfer the vacation time taking into account the wishes of the employee under certain circumstances. These are:

1. Sickness during vacation. The vacation time shall be extended automatically depending on the number of days shown in the medical certificate.

2. When the employee carries out state duties during vacation, if it involves exemption from work in accordance with the Labor Code.

3. Other instances according to special provisions of law or internal rules.

In the case of illness of an employee who is on vacation with subsequent dismissal, leave is not extended^[4].

If an employee was not paid timely during annual paid leave (three days prior to its beginning) or the employee has been advised of the start of the holiday later than 2 weeks prior to its beginning, the employer upon written request of the employee is required to move the paid annual leave to another period agreed upon with the employee (Art 124 Labor Code).

The employee may be recalled from vacation only with his consent (Art 125 Labor Code).The following categories of employees may not be recalled: persons under the age of 18, pregnant women, and persons working in harmful or hazardous conditions. The unused part of the vacation must be offered, at the choice of the employee, at a convenient time during the current business year, or added to the vacation of the next business year.

Employee’s refusal to comply with employer’s demand to discontinue the vacation irrespective of the reason may not be regarded as a violation of labor discipline.

If the employee is not satisfied with the timing of the vacation set in the vacation schedule, he or she may request the employer to change the date of the vacation by submitting a written request. However, the provision of vacation on a different date is a right of the employer, not an obligation^[5].

An employee who left work without obtaining the consent of the employer and before the issuance of an order granting leave may be subject to disciplinary action up to dismissal for absenteeism^[6] even if the leave was provided for in the vacation schedule^[7].

Administrative Rules – Vacation Schedule

The employer has a duty to publish a vacation schedule, setting the dates of paid annual leave for all employees. The vacation schedule must be published not later than two weeks before the end of the calendar year (Art 123 Labor Code). Both the employer and the employee will have to adhere to the vacation schedule.

As a rule, the employer creates the vacation schedule after polling employees as to convenient times for them to take leave, but the law does not provide for such an obligation. In the absence of a vacation schedule for an organization the employer may be subject to a penalty in accordance with Art 5.27 Code of Administrative Offences.

The employer has an additional obligation to remind the employee of the start of regular vacation two weeks in advance by issuing an Order and acquainting the employee with it (Art 123 Labor Code). Common Russian practice of an employee’s writing an additional application for regular leave immediately before going on such a leave is a bureaucratic custom, not a requirement of labor law.

The Labor Code specifies certain categories of workers who may choose their vacation time irrespective of the time they have worked for the employer. The vacation is to be granted to:

• A husband whose wife is on maternity leave (Art 123 Labor Code);
• A woman prior to her maternity leave or following her childcare leave (Art 260 Labor Code);
• An employee under 18 years old (Art 122 Labor Code);
• An employee who has adopted a child under 3 months old (Art 122 Labor Code);
• In the case of being offered a vacation after having been called back from vacation early (Art 125 Labor Code);
• In the case of vacation from combined jobs, the employee shall be offered vacation to coincide with vacation from the main job.

Federal laws may grant to some other employees the right to choose by themselves the time of vacation. For example, for spouses of military personnel leave shall be granted simultaneously with the release of the military personnel^[8].

The employer has an obligation to pay vacation salary no later than 3 days prior to the beginning of the vacation (part 9, Art 136 Labor Code). Failure to pay in time and to remind of the start of the vacation gives the right to the employee to change the date for his annual leave.

Division of Vacation Time

By agreement between the employer and the employee the time of the annual leave may be divided into parts. However, at least one part of the vacation must be of a minimum duration of 14 calendar days (Art 125 Labor Code). Although this rule is often neglected without consequences (sometimes at the employee’s initiative), it is advisable not to depart from it. For violation of this obligation the employer may be subject to administrative proceedings (Art 5.27 Code of Administrative Offences).

The law does not contain clear rules as to how Sundays and Saturdays should be taken into consideration in connection with granting vacation periods consisting of less than a whole week. We recommend that the employer consider this in the internal working rules.

Compensation for Unused Annual Leave

Unused vacation may be compensated in money for the part that exceeds the normal 28 vacation days. This can be done only upon written application of the employee if the employer agrees to this. However, in respect to pregnant women, youth (regarding the principal paid leave and additional annual paid leave) and persons working in harmful and hazardous conditions (regarding additional annual paid leave) no commutation of unused vacation into financial compensation is possible (Art 126 Labor Code).

In the case of summation of annual paid leave or postponement of the annual paid leave to the next business year, monetary compensation may be substituted for the portion of paid annual leave in excess of 28 calendar days, or any number of days of this part (Art 126 Labor Code).

In connection with termination of a Labor Contract the employee has the right to receive monetary compensation for unused vacation. In accordance with paragraph 28 of the Rules of regular and additional leave^[9] for employees who have worked for 11 months, they are entitled to compensation for the full year^[10].

The employee may also request in writing that the accumulated vacation days be granted to him ahead of termination of the contract. In this case the last vacation day will be the day of termination of the employment unless the termination is based on the employee’s guilty actions (Art 127 Labor Code). In that case, the last day of work is not the day of discharge (the last day of the vacation), but the day before the first day of the vacation^[11]. Provision of such leave is the employer’s right, not an obligation.

In regard to fixed term contracts, the vacation may also be granted at termination beyond the period of the fixed term (Art 127 Labor Code).

In granting leave followed by dismissal upon the dissolution of the labor contract by the employee, the employee is entitled to withdraw his resignation before the first day of the leave, if another employee has not been invited to transfer to his position (Art 127 Labor Code).

Calculations of Vacation Salary and Compensations

The salary for vacation time is calculated as a daily average of the salary earned during the last 12 calendar months (average daily rate) under Art 139 of the Labor Code (see also the Decree of Russian Government dated December 24, 2007, No. 922, as amended). It is calculated according to the following formula:

Step 1. The total salary during the last 12 calendar months (“accounting period”) is divided by 12, thus giving the average monthly salary.

Step 2. The average monthly salary is then divided by 29.3^[12] (the average number of days in a month), giving the average daily rate.

Step 3. The average daily rate is then multiplied by the number of calendar days of vacation to give the total amount of compensation for the vacation.

Along with the standard salary, additional payments (bonuses and the like) are to be included in the calculation (see Decree of Russian Government of December 24, 2007 No. 922). The Decree, however, contains special rules on calculating such payments:

– Monthly bonuses and remunerations – only one payment is included for the same activities for each month of the accounting period;

– Bonuses and remunerations for a longer period – only one payment for the same activities in the amount of the monthly part for each month of the accounting period;

– Remuneration following the results of the year, etc. – regardless of the moment of payment.

The average daily salary for the purposes of payment for vacations is measured in workdays and for the purpose of compensating for unused vacation is calculated by dividing the earned salary by the number of workdays according to calendar six-day workweeks (including Saturdays) (Art 139 (5) Labor Guide).

Unpaid Leave

The employer may grant unpaid leave to an employee upon his request in writing because of family or domestic circumstances or other justified reasons. The employer independently assesses how justified the reason is and may refuse the leave. However, in the case of dismissal for absenteeism a court can verify whether a reason was valid^[13]. In certain cases according to the law the employer has the obligation to grant such unpaid vacation upon the employee’s written request (Art 128 Labor Code).

• War veterans;
• Old-age pensioners still working;
• Working invalids;
• Parents and spouses of civil servants who were killed or died as a result of injury, concussion or maiming suffered in the performance of duties, or because of a disease associated with serving;
• Employees in the events of childbirth, marriage or death of a relative;
• In other cases stipulated by the Labor Code, other federal laws or a collective agreement.

In addition, teachers are entitled to twelve months’ leave (sabbatical) every 10 years (Art 335 Labor Code). The law does not say whether it is paid or not. In practice, it is usually unpaid and rarely requested.

 

[1] Resolution of the Federal CC of the North-West District dated 03.03.2011 in case No. A13-1168/2010 // ATP ConsultantPlus. 2014.

[2] Order of the Health Ministry of the Russian Federation dated 13.08.2009 No. 588n // ATP ConsultantPlus. 2014.

[3] Rostrud Letter dated 17.03.2010 No. 731-6-1 // ATP ConsultantPlus. 2014.

[4] Letter of Rostrud dated 24.12.2007 No.5277-6-1 // ATP ConsultantPlus. 2014.

[5] Ruling of the St. Petersburg City Court dated 13.09.2010 No. 33-12647/2010 // ATP ConsultantPlus. 2014.

[6] Appellate Ruling of the Moscow City Court dated 20.02.2013 in the case of No. 11-5857 // ATP ConsultantPlus. 2014.

[7] Appellate Ruling of the Moscow City Court dated 22.06.2012 in the case of No. 11-11089/2012 // ATP ConsultantPlus. 2014.

[8] Art 11(11) of Federal Law dated 27.05.1998 No. 76-FZ “On the Status of Military Personnel” // ATP ConsultantPlus. 2014.

[9] Rules for Regular and Additional Leave (approved by People’s Commissariat of Labor USSR 30.04.1930 No. 169) // Proceedings of the PCL USSR, No. 13, 10.5.1930.

[10] Rostrud Letter dated 18.12.2012 No. 1519-6-1 // ATP ConsultantPlus. 2014.

[11] Ruling of the Constitutional Court of the Russian Federation dated 25.01.2007 No. 131-O-O // ATP ConsultantPlus. 2014.

[12] Until 04/02/2014, this coefficient was 29.4, but was changed by the Federal Law dated 02.04.2014 No. 55-FZ “On Amending Article 10 of the Law of the Russian Federation “On State Guarantees and Compensations for People Working and Living in the Far North and Comparable Regions” and the Labor Code of the Russian Federation” // Collected Legislation of the Russian Federation.2014. No. 14. Art 1547.

[13] Determination of the Constitutional Court of the Russian Federation dated 19.02.2009 No. 75-O-O // ATP ConsultantPlus. 2014.