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Publication date: 22.04.2024
active and purposeful military lawyer with more than 4 years of experience
Does an employee acquire the right to additional social leave during the period of his/her stay on leave to take care of a child until the child reaches the age of three: clarification of the Ministry of Economy
In its letter No. 4706-05/26141-09 dated June 5, 2023, the Ministry of Economy explains that in accordance with the first part of Article 19 of the Law of Ukraine No. 504/96-VR of November 15, 1996 "On Vacations" (hereinafter - Law No. 504) to one of the parents who have two or more children under the age of 15, or a child with a disability, or who adopted a child, the mother (father) of a person with a disability since childhood of subgroup A of the I group, a single mother, the father of a child or a person with a disability from the childhood of subgroup A of I group, who brings them up without a mother (including in the case of a long-term stay of the mother in a medical institution), as well as a person who took into custody a child or a person with a disability from childhood of subgroup A of I group, or one of the adoptive parents parents are granted annual additional paid leave of 10 calendar days, excluding holidays and non-working days (Article 73 of the Labor Code of Ukraine).
Given the provisions of this article, each of the child's parents can use the leave, if the other has not used it.
In this regard, the parent of the child who claims to receive the corresponding leave must provide the employer with a document certifying the fact that it was not used in the corresponding working year.
Since the legislation does not define a specific list of such documents, the employer can be provided with any document that confirms with sufficient reliability that the corresponding leave was not granted.The decision to grant additional paid leave is made by the manager, taking into account the submitted documents.
Regarding the acquisition of the right to additional social leave, provided for in Article 19 of Law No. 504, while on other social leaves (to take care of a child until the child reaches the age of three, without retaining wages until the child reaches the age of six), we note that Law No. 504 , among other things, determines the conditions, duration and procedure for granting leave to employees, in particular, for raising and caring for children in order to properly combine their family and work responsibilities.
The Ministry of Economy notes that the labor legislation does not provide for the granting of two social leaves granted for the upbringing of children, simultaneously for the same period.
Thus, according to the Ministry of Economy, an employee does not acquire the right to leave provided for in Article 19 of Law No. 504 for the period of being on leave to care for a child until the child reaches the age of three or on leave without salary before the child reaches the age of six.
The Ministry of Economy also informs that, in accordance with the seventh part of Article 20 of Law No. 504, additional vacations for employees who have children or an adult child — a person with a childhood disability of subgroup A of I group, may deny the employee unused days of annual leave, and the provisions of Part Seven of Article 79 of the Labor Code and Part Five of Article 80 of the Labor Code, as well as Part Five of Article 11 and Part Two 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.
