Publication date: 20.04.2024
active and purposeful military lawyer with more than 4 years of experience
Seniority for annual leave: calculated according to new rules
We would like to remind you that on December 24, 2023, changes in the legislation on vacations, provided for by the Law of Ukraine of November 22, 2023 No. 3494-ХХ "On Amendments to Certain Legislative Acts of Ukraine Regarding Regulation of Provision and Use of Vacations, as well as Other Matters" entered into force (more — Law No. 3494). In this regard, the list of periods that do not form the employee's "vacation" length of service has been expanded. So let's figure out which periods will now be included in the "vacation" length of time for annual leave.
Period of military service
Changes regarding the inclusion of the period of military service in the "vacation" experience took place a long time ago. We would like to remind you that thanks to the Law of Ukraine dated July 1, 2022 No. 2352-IX "On Amendments to Certain Legislative Acts of Ukraine on Optimizing Labor Relations" from July 19, 2022 there was:
• the obligation of employers to keep the average earnings of employees in military service was abolished (amendments were made to Part 3 of Article 119 of the Labor Code of Ukraine; hereinafter - Labor Code);
• the period of military service, during which the employee's average earnings were not preserved (only the place of work and position were preserved) is excluded from the periods that give the right to annual basic leave (paragraph 2, part 1, article 9 of the Law of Ukraine of November 15, 1996 was updated No. 504/96-VR "On vacations" (hereinafter - Law No. 504).Therefore, the days of military service that occurred after July 19, 2022, are not included in the length of service for granting annual leave to employees whose average earnings are not preserved in accordance with the third part of Article 119 of the Labor Code.
At that time, there were still some categories of employees for whom the employer had to keep the average earnings during military service (even after 07/19/2022). After all, the retention of average earnings for such employees was not provided for by the third part of Article 119 of the Labor Code, but by other norms. Such employees included:
a) pedagogical and scientific-pedagogical workers (Part 2 of Article 57 of the Law of Ukraine of September 5, 2017 No. 2145-VIII "On Education" (hereinafter - Law No. 2145), Part 3 of Article 63 of the Law of Ukraine of June 6, 2019 of the year No. 2745-VIII "On vocational pre-university education");
b) TRO volunteers (Part 1 of Article 119 of the Criminal Procedure Code).
For them, the period of military service was included in the length of service, which entitles them to annual basic leave.
WARNING! As of December 24, 2023, Law No. 3494 canceled the employer's obligation to keep the average earnings during military service for teaching and scientific-pedagogical workers.
In this regard, they lose the right to "vacation" seniority. Since the time of military service of pedagogues starting from December 24, 2023, will not be included in the length of service, which gives the right to annual leave.
At the same time, the days of military service until December 24, 2023 will be included in the "vacation" experience of such employees.
As for TRO volunteers, the same rules for the formation of "vacation" length of service apply to such employees as until December 24, 2023.
Example 1. A part-time employee was mobilized from 11/14/2022. On January 8, 2024, he was released from military service. The next day, the employee started work and submitted a statement in which he expressed his desire to take annual basic leave from January 15, 2024. He has unused holidays for two working years from 11.01.2022 to 10.01.2023 and from 11.01.2023 to 10.01.2024. The duration of vacation for a fully worked working year is 24 calendar days, since the employer limited the duration of the annual basic vacation during the period of martial law in accordance with the first part of Article 12 of the Law of Ukraine dated March 15, 2022 No. 2136-IX "On the organization of labor relations during the period of martial law" state" (hereinafter - Law No. 2136). How many days of leave can he be given?
For the working year from 11.01.2022 to 10.01.2023, the employee has the right to 24 calendar days. Despite the fact that he was mobilized from 14.11.2022 (at that time, the average earnings were kept for him in accordance with Law No. 2145).
For the working year from 11.01.2023 to 10.01.2024, the "vacation" length of service should be calculated taking into account the following:
• the period of military service from 11.01.2023 to 23.12.2023 is included in the length of service, which gives the right to annual basic leave. This is 347 days;
• the period of military service from 12/24/2023 to 01/10/2024 will not be included in the employee's "vacation" length of service.The number of days of unused annual basic leave for the working year from 11.01.2023 to 10.01.2024 is:
24 days x 347 k. days : 365 = 22.82 ≈ 23 k. days.
The total number of days of unused annual basic leave:
24 + 23 = 47 days.
Vacations without salary
If you look now at paragraph 4 of the first part of article 9 of Law No. 504, you can see that the following is still indicated in this norm: the time when the employee did not actually work, but the place of work (position) was kept for him and he was not paid a salary in the order specified by Art. 25 and 26 of Law No. 504, are included in the length of service, which gives the right to annual basic leave.
An exception is only leave granted in accordance with the third paragraph of the first part of Article 25 of Law No. 504, for the care of a child up to 6 (16, 18) years of age.
But we warn you that on December 24, 2023 (the date of entry into force of Law No. 3494), Article 26 of Law No. 504 was amended, due to which this norm was supplemented with a new part (fourth). According to it, the time of leave without salary, granted in accordance with the first and third parts of Article 26 of Law No. 504, is not included in the length of service, which gives the right to annual basic leave. And therefore, all vacations without salary, which were granted to the employee from 12.24.2023 on the basis of Art. 26 of Law No. 504
(due to family circumstances, in connection with quarantine, the effect of martial law), will fall from the "vacation" period of such an employee.
At the same time, the days of unpaid leave that were granted on the basis of Article 26 of Law No. 504 until 12/24/2023 and fall into the period:
• until 23.12.2023 (inclusive), — are included in the length of service, which gives the right to annual basic leave;
• from 12/24/2023 - are not included in the employee's "vacation" length of service.
Pay attention! The procedure for enrolling in "vacation" experience has not changed:
• vacations without salary, granted on the basis of Article 25 of Law No. 504. They, as before, are included in the "vacation" length of the employee. The exception is unpaid leave for taking care of a child under 6 (16, 18);
• leave without salary for IDPs and those who have gone abroad. The days of such unpaid leave are still NOT included in the length of service, which gives the right to annual basic leave (the basis is Part 4 of Article 12 of Law No. 2136-IX).
Example 2. The employee was hired on January 27, 2022. Since February 24, 2022, he was on leave without pay (first quarantine, then military). Without leaving the vacation at his own expense, the employee is dismissed on January 19, 2024. The duration of vacation for a fully worked working year is 24 calendar days. How many vacation days should he be compensated upon dismissal?
This employee should be compensated for the days of annual basic leave accumulated by him over two working years:
• from 01.27.2022 to 01.26.2023;
• from 01/27/2023 to 01/19/2024.
For the working year from 01.27.2022 to 01.26.2023, the employee has the right to 24 calendar days of vacation.Because at that time, vacations without salary, granted under Article 26 of Law No. 504, were included in the "vacation" length of the employees.
But for the working year from 01.27.2023 to 01.19.2024, the "vacation" length of service of this employee should be calculated taking into account the following:
a) only the period of the employee's stay on unpaid leave from 01.27.2023 to 12.23.2023 is included in the length of service that gives the right to annual basic leave. This is 331 k. days;
b) days spent on unpaid leave from 12/24/2023 to 01/19/2024 will not be included in the employee's "vacation" record.
The number of days of unused annual basic leave is:
24 days x 331 k. days : 365 k. days = 21.76 ≈ 22 days.
Periods forming "vacation" seniority
"Vacation" length of service, i.e. length of service that gives the right to annual basic leave, is determined in accordance with Article 82 of the Labor Code and Article 9 of Law No. 504.
According to these norms, the following periods are included in the "vacation" experience of employees:
1. Time of actual work during the working year for which leave is granted.
On this basis, the employee's "vacation" experience will include the time of actual work under part-time conditions, including in the case when a woman works on leave to take care of a child under 3 years old under part-time conditions.
2. The time when the employee actually did not work, but according to the legislation, the place of work (position) and salary were preserved for him in full or in part.
The exception is periods of military service without maintaining the average earnings provided for by law (see above).
3. The time when the employee actually did not work, but his place of work (position) was kept and he was paid assistance from the state social insurance.
An exception is leave to take care of a child before the child reaches 3 years of age.
On this basis, the length of service entitling to annual leave includes the following periods:
• leave due to pregnancy and childbirth;
• temporary incapacity.
Pay attention! If an employee during the period of temporary incapacity for work / leave to take care of a child before the child reaches the age of 3 did not receive temporary incapacity benefit, then such a period falls out of his "vacation" length of service (letter of the Ministry of Economy dated 15.06.2023 No. 4706-05 /28652-07).
