Often, at the end of the calendar year, employees find out that they have unused basic annual leave days (some employees managed to enjoy their full vacation, while others only managed to rest for a few days). So what should employees do with unused vacation days during martial law?
During war, does an employee lose the right to use vacation for past working years?
No, however, the decision to grant or refuse to grant unused annual leave days is made solely by the employer.
According to paragraph 5, part 1, article 12 of the Law of Ukraine "On the Organization of Labor Relations under Martial Law", during the period of martial law, the employer may refuse to grant the employee unused days of annual leave. However, according to the clarification of the State Labor Service, this is the employer's right, not his obligation.
In what cases is compensation paid for unused vacation?
According to Article 24 of the Law of Ukraine «On Holidays», unused vacation may be replaced by monetary compensation in the following cases:
- in the event of an employee being dismissed;
- in the event of an employee being drafted into military service, acceptance into military service under a contract;
- at the employee's request.
Is it possible to replace unused vacation with monetary compensation during martial law?
Yes, this happens at the employee's request based on Article 24 of the Law of Ukraine "On Vacations", that is, at the employee's request.
How to get compensation for unused annual leave without dismissal during martial law?
Compensation for unused vacation is provided upon application by the employee to the manager with a request for payment of such compensation for a certain number of unused days of annual vacation.
For which unused vacation days is compensation not provided?
Here it is worth distinguishing between types of leave and the obligation to provide such compensation. According to Article 24 of the Law of Ukraine "On Leave", in the event of dismissal of an employee, he is paid monetary compensation for all unused days of annual leave, as well as additional leave for employees who have children or an adult child - a person with a disability since childhood of subgroup A, group I.
This article specifies that compensation is provided for annual leave and additional leave for employees who have children or an adult child - a person with a disability since childhood of subgroup A of group I. At the same time, part 1 of article 4 of the same Law establishes the following types of leave:
Annual vacation:
- basic leave (Article 6 of this Law);
- additional leave for work with harmful and difficult working conditions (Article 7 of this Law);
- additional leave for the special nature of work (Article 8 of this Law);
- other additional holidays provided for by law.
The legislator obliges the employer to provide compensation for such leave.
Unused days are not subject to compensation:
- additional leave in connection with studies;
- creative vacations;
- vacations for training and participation in competitions;
- social holidays;
- leave without pay.
Can an employer refuse to grant an employee unused annual leave during martial law?
Yes, and such a right is assigned to the employer. According to Part 1 of Article 12 of the Law of Ukraine "On the Organization of Labor Relations under Martial Law", during the period of martial law, the provision of an employee with annual basic leave by the employer's decision may be limited to 24 calendar days for the current working year. However, it may not mean an obligation.
Is the employer liable for refusing to grant leave or violating the terms of its provision during wartime?
According to Part 2 of Article 12 of the Law of Ukraine "On the Organization of Labor Relations under Martial Law", during the period of martial law, the employer may refuse to grant an employee any type of leave (except for leave due to pregnancy and childbirth and leave to care for a child until he reaches the age of three), if such an employee is involved in performing work at critical infrastructure facilities, work on the production of defense goods, or in performing a mobilization task (order).
However, refusal to grant leave to other categories of employees or violation of their terms is grounds for holding the employer liable both financially and administratively.
Thus, the liability of employers for violating labor legislation regarding vacations is regulated by Article 265 of the Labor Code of Ukraine and establishes a fine in the amount of the minimum wage.