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Publication date: 21.04.2024
active and purposeful military lawyer with more than 4 years of experience
Heads of educational institutions, departments (departments) of education of executive bodies of local councils are contacting the Ministry of Education and Science of Ukraine for clarification regarding the right to annual basic leave of employees who, during martial law, are on layoff for a long time (more or less than a year) , for the payment of health care benefits and accrual of "vacation" in such cases.
The right to leave
The conditions for granting annual basic vacations are regulated by the Law of Ukraine dated November 15, 1996 No. 504/96-VR "On Vacations" (hereinafter - Law No. 504).In accordance with the first part of Article 9 of Law No. 504, the length of service entitling to annual basic leave includes, in particular:
• time of actual work (including part-time) during the working year for which leave is granted;
• the time when the employee actually did not work, but in accordance with the law, the place of work (position) and salary were kept for him in full or in part (including the time of paid forced absenteeism caused by illegal dismissal or transfer to another job), except in cases when for employees called up for fixed-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 or accepted for military service under a contract, including including by concluding a new contract for military service, during the validity of the special period for the period before its end or until the day of actual release, the place of work and the position at the enterprise were kept for the time of conscription.
We would like to remind you that, according to Article 34 of the Labor Code of Ukraine (hereinafter - the Labor Code), a layoff is a stoppage of work caused by the absence of organizational or technical conditions necessary for the performance of work, force majeure or other circumstances.
Payment for idle time is defined in Article 113 of the Labor Code, which provides for payment of idle time due to no fault of the employee to maintain the average earnings or payment at a rate not lower than two-thirds of the tariff rate of the employee's grade (salary).We note that, in accordance with the resolution of the Cabinet of Ministers of Ukraine dated March 7, 2022 No. 221 "Some issues of remuneration of employees of state bodies, local self-government bodies, enterprises, institutions and organizations financed or subsidized from the budget, in conditions of martial law", managers state bodies, enterprises, institutions and organizations financed or subsidized from the budget, until the termination or abolition of martial law in Ukraine, within the limits of the wage fund provided for in the estimate, may independently determine the amount of payment for workers' downtime, but not lower than two-thirds of the tariff rate of the employee's tariff category (position salary).
Therefore, in the absence of organizational or technical conditions necessary for the performance of work, layoffs may be announced for individual employees, in the institution or its structural subdivisions with appropriate payment for layoff time. That is, during idle time, employees do not actually work, but according to the law, their place of work (position) and wages are preserved in full or in part, therefore, the periods of idle time of employees are included in the length of service, which gives the right to annual basic leave.
Accrual of "vacation"
Calculation of the average salary for payment of vacation time is carried out in accordance with the Procedure for calculating the average salary, approved by the Resolution of the Cabinet of Ministers of Ukraine dated February 8, 1995 No. 100 (hereinafter - Procedure No. 100).
Calculation of the average salary for payment of vacation time or for payment of compensation for unused vacations is made based on payments for the last 12 calendar months of work preceding the month of granting vacation or payment of compensation for unused vacations (clause 2 of Order No. 100).
According to paragraph 3 of Order No. 100, when calculating the average salary, all amounts of accrued wages are taken into account in accordance with the legislation and the terms of the employment contract, except for those specified in paragraph 4 of Order No. 100.When calculating the average salary for payment for vacation time or compensation for unused vacation time, in addition to the payments specified in paragraph 3 of Order No. 100, the actual earnings include payments for the time during which the employee maintains the average earnings (for the time of the previous annual vacation, the performance of state and public duties, business trip, forced absenteeism, etc.) and assistance in connection with temporary incapacity.
Please note that when calculating the average salary, one-time payments are not taken into account (compensation for unused vacation, material assistance, assistance to retired employees, severance pay, etc.), bonuses based on the results of annual performance evaluations, monetary rewards for conscientious work of teaching staff .
Clause 7 of Order No. 100 stipulates that the calculation of the average salary for payment of vacation time or compensation for unused vacations is carried out by dividing the total earnings for the last 12 months before the vacation was granted or for the actually worked period (calculation period) by the corresponding number of calendar days of the calculation period . Holidays and non-working days established by law are excluded from the calculation. The obtained result is multiplied by the number of calendar days of vacation.
At the same time, it should be noted that in connection with the state of war in the country, in accordance with the Law of Ukraine dated March 15, 2022 No. 2136-IX "On organization of labor relations in the conditions of martial law" (hereinafter - Law No. 2136), there are no public holidays in the period from March 24, 2022 until the end of martial law.
To calculate vacation pay for employees who have been idle for a long time, it is necessary to use the norms of paragraphs six and seven of item 2 of Order No. 100.
In accordance with the sixth paragraph of Clause 2 of Order No. 100, the time during which the employee did not work in accordance with the law and did not save his earnings or partially saved them, is excluded from the calculation period. The calculation period also excludes the time for which there is no data on the employee's accrued wages as a result of hostilities during martial law.
That is, the idle period is not included in the calculation period (the last 12 calendar months of work preceding the month of leave). Therefore, for employees who have been on layoff for less than a year (for example, 8 months), the calculation period for calculating the average salary for payment of vacation time will be actually worked for this 12-month period - 4 months. The calculation in this case is carried out as specified in clause 7 of Order No. 100.
If the employee does not have a calculation period (that is, the employee was on layoff for 12 or more months), then the average salary is calculated in accordance with paragraphs three to five of clause 4 of Order No. 100.According to paragraphs three to five of Clause 4 of the Order:
"If the employee did not receive a salary during the calculation period, calculations are made from the tariff rate, official (monthly) salary established for him in the employment contract. If the amount of the official salary is less than the amount of the minimum wage stipulated by the law, the average wage is calculated from the established amount of the minimum wage at the time of calculation. In the case of a part-time employment contract, the calculation is made from the minimum wage, calculated in proportion to the terms of the concluded employment contract.
If the calculation of the average wage is calculated based on the official salary or minimum wage, then it is calculated by multiplying the official salary or minimum wage by the number of months of the calculation period.
Therefore, for employees who have been out of work for 12 months or more, who do not have a calculation period, for calculation we take the monthly earnings in the amount of the employee's official salary (rate) or in the amount of the minimum wage, if the amount of the official salary is less than the amount of the minimum wage prescribed by law salary.
