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Publication date: 21.04.2024
active and purposeful military lawyer with more than 4 years of experience
Provision of additional paid leave for civil servant downtime and/or leave without pay: Clarification of the NADS
In accordance with paragraph 3 of part three of Article 13 of the Law of Ukraine dated December 10, 2015 No. 889-VIII "On Civil Service" (hereinafter - Law No. 889), the National Agency of Ukraine for Civil Service (hereinafter - NADS) issued an explanation dated September 13 No. 156 of 2022 "Regarding the provision of additional paid leave for the period of idleness of a civil servant and/or for the time of being on leave without retaining wages."
According to Article 58 of Law No. 889, for each year of public service after reaching five years of public service, a civil servant is granted one calendar day of annual additional paid vacation, but no more than 15 calendar days.
Article 5 of Law No. 889 establishes that the labor legislation applies to civil servants in relation to relations not regulated by Law No. 889.
According to Article 34 of the Labor Code of Ukraine, a layoff is a stoppage of work caused by the lack of organizational or technical conditions necessary for the performance of work, force majeure or other circumstances.
In case of layoff, employees may be transferred with their consent, taking into account specialty and qualifications, to another job at the same enterprise, institution, organization for the entire period of layoff, or to another enterprise, institution, organization, but in the same area for a period of up to one monthPart two of Article 58 of Law No. 889 stipulates that leave without pay is granted to civil servants in accordance with the law.
In accordance with Article 26 of the Law of Ukraine dated November 15, 1996 No. 504/96-VR "On Vacations" (hereinafter - Law No. 504), due to family circumstances and for other reasons, an employee may be granted leave without salary for a period determined by an agreement between the employee and the owner or a body authorized by him, but not more than 15 calendar days per year.
In the event that the Cabinet of Ministers of Ukraine establishes a quarantine in accordance with the Law of Ukraine of April 6, 2000 No. 1645-III "On the Protection of the Population from Infectious Diseases", the period of being on vacation without salary for the period of quarantine is not included in the general period established by the first part of this article .
According to the third part of Article 12 of the Law of Ukraine dated March 15, 2022 No. 2136-IX "On the Organization of Labor Relations in the Conditions of Martial Law" (hereinafter - Law No. 2136), during the period of martial law, the employer may, at the request of the employee, grant him leave without salary payment without limitation of the period established by the first part of Article 26 of Law No. 504.
In connection with the entry into force on July 19, 2022 of the Law of Ukraine dated July 1, 2022 No. 2352-IX "On Amendments to Certain legislative acts of Ukraine on the optimization of labor relations" currently part four of Article 12 of Law No. 2136 stipulates that during the period of martial law, the employer, at the request of an employee who has moved outside the territory of Ukraine or acquired the status of an internally displaced person, must provide him with leave without salary retention for the duration specified in the application, but no more than 90 calendar days, without counting the time spent on vacation to the length of service, which gives the right to the annual basic vacation provided for in clause 4 of the first part of article 9 of Law No. 504.
In accordance with paragraph 11 of the Procedure for granting civil servants additional paid vacations, approved by Resolution No. 270 of the Cabinet of Ministers of Ukraine dated April 6, 2016 (hereinafter — Procedure No. 270), additional vacations are not granted to civil servants during their stay:
• on leave to take care of a child until the child reaches the age of three;
• on vacations without salary:
— in the case when the child needs home care (for the duration specified in the medical report, but no longer than until the child reaches the age of six);
— in the case when the child has type I diabetes (insulin-dependent), no more than before the child reaches the age of sixteen;
— in the case when the child is assigned the category "child with a disability of subgroup A" (before the child reaches the age of eighteen).Additional leave is not granted to a civil servant while studying at an educational institution, institution, or organization, regardless of the form of ownership, that has the right to provide educational services, in particular abroad, to increase the level of professional competence with a break from production.
Therefore, Clause 11 of Order No. 270 defines an exhaustive list of cases for which additional paid leave is not granted.
Taking into account the above, additional paid leave is granted to a civil servant for idle time and for the time spent on unpaid leave granted in accordance with Article 26 of Law No. 504, as well as parts three and four of Article 12 of Law No. 2136.
Separately, the NADS reports that the clarifications of the ministries and other central bodies of executive power are only informative and do not establish legal norms.
