Publication date: 22.04.2024
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Can an employer refuse to grant annual leave to an employee for two years in a row: clarification of State Labor
The Central Region of Inspection Activity in the Dnipropetrovsk Region of the South-Eastern Interregional Administration of the State Labor Service explains that during the period of martial law, an employer may refuse to grant an employee leave for two consecutive years, but in cases where the employee works at a critical infrastructure facility .
The conditions of the first part of Article 12 of the Law of Ukraine dated March 15, 2022 No. 2136-IX "On the organization of labor relations under martial law" provide that during the period of martial law, the employer may deny the employee any type of leave (except for "due to pregnancy and childbirth and leave to take care of a child until it reaches the age of three), if such an employee is involved in the performance of work on critical infrastructure facilities.
The list of objects belonging to critical infrastructure, defined by the Law of Ukraine dated November 16, 2021 No. 1882-IX "On Critical Infrastructure".
According to Article 79 of the Labor Code of Ukraine, the sequence of vacations is determined by schedules approved by the employer.
The specific period of granting annual vacations within the limits established by the schedule is agreed between the employee and the employer, who is obliged to notify the employee in writing about the date of the start of the vacation no later than two weeks before the period established by the schedule.In case of postponement of annual leave, the new term for its provision is established by agreement between the employee and the owner or the body authorized by him (Article 80 of the Labor Code of Ukraine).
Thus, the employer can refuse to grant the employee annual leave outside of the periods specified in the vacation schedule.
Please note that the prohibition of the employer's refusal to grant leave to an employee for two consecutive years is defined by the seventh part of Article 79 and the fifth part of Article 80 of the Labor Code of Ukraine (hereinafter - the Labor Code of Ukraine), as well as by the fifth part of Article 11 and the second part of the article 12 of the Law of Ukraine dated November 15, 1996 No. 504/96-VR "On Vacations" (hereinafter - Law No. 504). Yes, the unused part of the annual leave must be given to the employee, as a rule, 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, and it is prohibited not to grant annual leave of full duration for two consecutive years, as well as not to grant it during of the working year for persons under the age of eighteen and employees who have the right to annual additional holidays for work with harmful and difficult conditions or with a special nature of work.However, the first 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) stipulates that during the period of martial law, the employer may deny the employee unused days of annual leave holidays and norms of the seventh part of Article 79 of the Labor Code and the fifth part of Article 80 of the Labor Code, as well as the fifth part of Article 11 and the second part of 12 of Law No. 504 do not apply. There is no clarification that these norms do not apply only to employees who are involved in the performance of work on critical infrastructure facilities, and accordingly, they do not apply to all employees of any enterprise.
Therefore, during the period of martial law, the employer can refuse to grant exactly unused days of annual leave to the employee for two consecutive years, regardless of whether he is involved in the performance of work on critical infrastructure facilities.
