Natalia Slipchenko,
Senior specialist for personnel administration
Payroll sector BDO LLC
The legislative acts defining the state guarantees of employees exercising the right for vacations are: the Law of Ukraine "On Vacations" dated 11.15.1996 No. 504/96-VR (hereinafter - the Vacation Law) and the Code of Labor Laws of Ukraine (hereinafter - LC).
However, since the beginning of the war, were adopted a number of legislative acts, which amended the labor legislation.
In particular, the Law of Ukraine "On the Organization of Labor Relations in Martial Law" dated 15.03.2022 No. 2136-IX as amended (hereinafter referred to as the Law) made changes to the procedure for granting and compensating vacations, calculating seniority for annual basic and additional vacations, some restrictions have been set, and new types of vacations have also been added.
That is, during the period of martial law, the norms of labor legislation are not applied in the part of relations regulated by the specified Law. It is important to note that this Law is valid during the period of martial law and ceases to be valid from the date of its termination or cancellation, except for part 3 of Article 13 of the Law.
There are a lot of changes, so in order not to get confused and make mistakes, we will help you understand in this article what innovations should be taken into account now and consider some nuances of granting and issuing vacations to employees during martial law.
Interesting topic: Features of personnel accounting / labor relations under wartime conditions
Grant of annual leave
First of all, we will remind you about the basic rule for granting vacations, which has not changed, and which should not be forgotten, is that vacations must be granted according to the vacation schedule. The availability of the schedule enables the employer to promptly notify the employee in writing about the date of the start of the vacation, to prepare the relevant administrative documents, to pay the employee wages for the time of the vacation and, ultimately, to send the employee on vacation who for any reason refuses to use it.
Below, we propose to consider exactly what changes the legislation on vacations during the period of martial law has undergone, as of today.
During the period of martial law, the employer is exempted from the obligation to provide the employee with a vacation lasting more than 24 calendar days, when a longer duration of vacation is provided for the employee by the legislation, collective agreement and labor agreement.
That is, the provision of annual basic leave to an employee by the employer's decision may be limited to 24 calendar days for the current working year.
If the duration of an employee's annual basic leave is more than 24 calendar days, then the difference in leave days is not lost, the provision of unused days of such leave during the period of martial law is carried over to the period after the termination or cancellation of martial law. The Ministry of Economy notes this on its official website in a comment to Law No. 2136.
Please note, that the 24 calendar days limit on the duration of leave, that can be granted during martial law, applies only to annual basic leave.
At the same time, the employee may also be granted annual additional vacations, social and other vacations, which are provided for by the Law on Vacations.
If the employee's annual vacation, scheduled in the vacation schedule, falls during the period declared to such employee to be idle and such employee does not perform work at critical infrastructure facilities, the employer must issue an order to terminate the idle time and, after that, issue the employee a vacation.
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Monetary compensation for all days of unused annual leave, as well as additional leave for employees who have children
In case of dismissal of an employee during the period of martial law, he is paid monetary compensation in accordance with Art. 24 of the Law on Vacations. We draw your attention to the fact that the norm, which was in force before the start of the war, regarding the transfer of monetary compensation to the employee's account at the request by the company during dismissal upon transfer (paragraph 5 of Article 36 of the Labor Code), does not apply during the period of martial law.
In addition, in the event of the death of an employee, monetary compensation for unused days of annual leave, as well as additional leave for employees with children or an adult child - a person with a disability from childhood of subgroup A of group I, not received during his lifetime, is paid to the family members of such employee, and in case of their absence, it is included in the inheritance.
Refusal to grant leave during wartime
During the period of martial law, the employer may refuse to grant any type of leave to an employee (except leave in connection with pregnancy and childbirth and leave to care for a child up to the age of three), if such an employee is involved in the performance of work on critical infrastructure projects. The following include facilities that are important for the economy, national security and defense, the disruption of which could harm vital national interests.
According to the clarifications of the State Labor Service in the Zaporizhia region, during the period of martial law, the employer may refuse to grant the employee unused days of annual leave for previous periods. But this is the employer's right, not an obligation.
During the period of martial law, the employer may deny the employee unused days of annual leave. Also, during the period of martial law, the norms of Part 7 of Art. 79, Part 5 of Art. 80 of the Criminal Code and Part 5 of Art. 11, part 2 of Art. 12 of the Law on Vacations, which provide that:
- the unused part of the annual leave must be given to the employee, usually before the end of the working year, but no later than 12 months after the end of the working year for which the leave is granted;
- it is prohibited not to grant full annual leave for two years in a row, as well as not to grant it during the working year to persons under the age of eighteen and employees who have the right to annual additional leave for work with harmful and difficult conditions or with a special nature of work.
At the same time, the Law does not suspend or repeal the norms of Art. 9-1 of the Labor Code, and the norms of this article themselves do not contradict the provisions of the Law. So, according to Art. 9-1 of the Labor Code, additional labor and social benefits, in comparison with the legislation, enterprises, institutions, organizations, may establish additional labor and social benefits for employees, compared to the legislation, within their powers and at their own expense.
Therefore, taking into account the peculiarities of work organization and the conditions of economic activity within its powers, at its own expense, the employer has the right to provide employees with basic paid annual leave lasting more than 24 days during the period of martial law. Granting a vacation longer than 24 days during the period of martial law is a right, not an obligation of the employer.
Thus, starting from 19.07.2022, the employer has the right to decide at his own discretion whether to grant the employee annual basic leave in the conditions of martial law of full duration, or to limit it to 24 calendar days. In addition, the employer independently decides whether to grant annual basic leave during martial law for the previous year.
Unpaid Leaves
During the period of martial law, the employer may, at the request of the employee, may provide leave without pay, without taking into account the norms of Part 1 of Art. 26 of the Law on Holidays. We would like to remind you that on the basis of this norm, due to family circumstances and other reasons, an employee may be granted leave without pay for a period stipulated by the agreement between the employee and the employer, no more than 15 calendar days per year, but as long as martial law continues (currently until August 23 ), such leave can be granted at least for this entire period.
Unpaid leave on this basis is granted:
- without limiting its duration, but during the period of martial law;
- to any employee, regardless of his category or status, upon his application and the employer's approval;
- is not mandatory for the employer to make a decision on its provision.
However, leave without pay will be granted exclusively at the initiative of the employee, and as already noted, the employer has the right to deny the employee such leave if the enterprise where he works belongs to critical infrastructure.
On this basis, the time spent on unpaid leave is counted against the length of service, which gives the right to annual basic leave.
In addition, employees have the right to leave without pay for the period of quarantine established by the Cabinet of Ministers of Ukraine in accordance with the Law of Ukraine "On the Protection of the Population from Infectious Diseases". The term of such leave is not included in the total term (15 calendar days) of leave without salary, which is granted due to family circumstances and for other reasons. We would like to remind you that today the quarantine was extended until August 31, 2022.
A new type of leave without pay during the war
From July 19, 2022, a separate type of leave without pay for the duration of the war appeared - due to departure from the borders of Ukraine.
On this new basis, leave without pay is granted:
- with a duration of no more than 90 calendar days during the period of martial law. The law did not limit the employee's ability to exercise his right to this vacation several times, but the total duration of vacations (parts) that the employee can request to be granted in accordance with this rule cannot exceed 90 days during martial law. We believe that 90 days should be calculated starting from July 19;
- exclusively to employees who have left the territory of Ukraine or acquired the status of an internally displaced person, which is confirmed by a certificate;
- mandatory at the request of the employee;
- the employer cannot refuse the employee to provide this vacation. Taking into account the conditions of its provision, the employee must confirm the fact that he "moved outside the territory of Ukraine" or "acquired the status of an internally displaced person." The method of confirming the fact of leaving Ukraine is not defined by law, so the decision to grant leave in this case will be made by the employer on the basis of the evidence provided by the employee, which sufficiently confirms this fact. In the case of the return of an employee who is on the specified leave to the territory of Ukraine, taking into account the conditions of its provision, the person loses the right to demand the extension of such leave.
It should be noted that any leave cannot be granted under compulsion. First of all, it concerns vacations without pay. We draw your attention to the fact that State Labor Service has already resumed inspections of employers during martial law.
Seniority, giving the right to annual basic leave
The periods that are counted in the length of seniority, giving the right to annual leave, are established by Art. 9 of the Law on Holidays and Art. 82 Labor Code.
From 19.07.2022, changes were made to these norms. In particular, they affected employees called up for term military service, military service by conscription of officers, military service by conscription during mobilization, for a special period, military service by conscription of reservists in a special period, as well as those accepted for military service under a contract, in particular by concluding a new contract for military service.
Thus, starting from 19.07.2022, the period of military service of such persons is not included in the length of seniority, which gives the right for annual basic leave.
That is, the time spent in service from the day of conscription to July 18, 2022, inclusive, is included in the seniority for annual leave.
Note that these changes did not affect territorial defense volunteers. That is, the period of dismissal of territorial defense volunteers continues to be counted towards the length of seniority, which gives the right to annual basic leave.
It should also be noted that the period of paid downtime through no fault of the employee (Article 113 of the Labor Code) is counted in the length of service giving the right to annual basic leave, while the suspension of the employment contract for the duration of martial law is not counted.
Before the war, when determining the duration of annual (main and additional) leave and social leave for children, holidays and non-working days were not taken into account (Article 5 of the Law on Leave and Article 73 of the Labor Code).
During the period of martial law, there are no holidays or non-working days, therefore, during the war, holidays are included in the duration of such vacations as ordinary days. Since such days have become paid days of annual leave, there is no need to exclude them from the calculation.
There were also nuances regarding the inclusion of a period of new leave without pay in the vacation record. On this basis, the time spent on leave without pay is not included in the length of seniority, which gives the right to annual basic leave in accordance with clause 4 of the first part of the article. 9 of the Law on Vacations.
Registration and payment of vacation during martial law
In addition to the need to be constantly aware of new shifts, it is also necessary to correctly arrange the provision of vacations to employees.
As a general rule, vacations are issued on the basis of employee applications or a warning about their commencement. But due to the martial law, due to the impossibility of submitting original applications, employees can send them in any available way, for example, by e-mail or messengers: Viber, Whats App, Telegram, etc. That is, if the employer receives such an application, and he does not mind granting the employee such leave, the employer must issue an order to grant annual (main or additional) leave.
Employees who perform their work remotely or have traveled abroad should be informed of the leave order using available electronic means of communication, such as those mentioned above.
According to the new wording of the third part of Art. 115 of the Labor Code, wages to employees for the entire vacation period are paid before the vacation begins, unless otherwise provided by the labor or collective agreement. Thus, the salary for the entire time of the vacation should, in general, be paid no later than the moment the vacation begins. At the same time, the labor or collective agreement may establish other conditions for such payment. The law does not directly define the prohibition of the possibility of defining in collective or labor agreements payment terms that fall after the start of the vacation.
Recall of an employee from vacation
According to Article 79 of the Labor Code and Article 12 of the Law on Vacations, an employee can be recalled from vacation if he is on annual vacation. At the same time, recalling is allowed only with the consent of the employee and only in certain cases provided for by law.
The legislation does not provide for the recalling of an employee from other types of vacations. Therefore, if an employee has been granted leave without pay, it is not possible to recall him from such leave. But with the agreement of the parties to the employment contract, leave without pay can be terminated ahead of time. Such a procedure is not directly prescribed by law, but it is not prohibited either.
So, as you can see, there are a lot of changes in the conditions of martial law, legislation changes almost every day, so it is important to constantly keep your finger on the pulse in order to be aware of all innovations in labor legislation. But remember that all the changes given in the article are effective only during the period of martial law, and after the end of the war we will again return to the laws we are used to, which were in effect before the war.