Saved average earnings for the period of vacation. Features of granting study holidays

Employees who combine work with study, for passing exams, defending a dissertation, or simply for passing an intermediate session, are provided by law for educational leave. Moreover, unlike annual paid leave, study leave is provided regardless of how long this employee has worked in a particular organization - a day or six months. Practically in every organization there are student workers and from time to time questions arise in connection with this. In the article we will tell you what an employer should know about study leave.

Conditions for granting study leave

In accordance with Ch. 26 of the Labor Code of the Russian Federation, the employer is obliged to provide persons who combine work with education with additional study holidays. This obligation arises regardless of whether the employee himself expressed a desire to study or was sent to study by the employer.

Vacations can be both paid and unpaid - this is influenced by the form of training of the employee (full-time, part-time or part-time). Basically, if the employee is studying full-time, the vacation is not paid, and if in absentia or part-time, it is paid.

However, the employer does not have an obligation to provide study leave to all trainees without exception, since the legislator has established certain conditions for this.

At the same time, study leave is provided not only to employees who receive education for the first time, but also those who already have a professional education of the appropriate level and are sent to receive education by the employer under an employment or student agreement concluded in writing (part 1 of article 177 of the Labor Code of the Russian Federation).

For your information:

Guarantees and compensations for employees who receive education of the appropriate level not for the first time and on their own initiative, as well as those studying in programs that do not have state accreditation, may be established by a collective or labor agreement.

A successful student is one who has no debt for the previous course (semester), which is confirmed by a certificate-call, without which the employer is not obliged to provide study leave by the employee.

If an employee receives education at the same time in two organizations that carry out educational activities, educational leave is granted only in connection with education in one of these organizations (at the choice of the employee).

Question:

Is the employer obliged to provide part-time employees with study leave or annual paid leave during the study period?

Guarantees and compensations for employees who combine work with education are provided only at their main place of work (Article 287 of the Labor Code of the Russian Federation).

According to Part 1 of Art. 286 of the Labor Code of the Russian Federation to persons working part-time, annual paid holidays are granted simultaneously with leave for their main job. If the employee has not worked for 6 months at a part-time job, the leave is provided in advance. That is, the employer for whom the employee works part-time is obliged to provide him only with annual paid leave simultaneously with leave at the main place of work. The Labor Code does not provide for the provision of part-time study leave or annual paid leave simultaneously with study leave for the main job.

Thus, at a part-time job, you can contact the employer with a copy of the call certificate and an application with a request only for leave without pay for the duration of the study leave. And if the employer does not object, the part-time worker will arrange a vacation at his own expense for the duration of the training, the duration of which is determined by agreement between the employer and the employee.

Vacation types

The types and duration of vacations, depending on the educational programs and the form of education, are presented in the table.

Vacation type

Education program

Form of study

The purpose of the vacation and its duration (in calendar days in the academic year)

Paid		Correspondence or part-time	1. Interim certification: - on the 1st and 2nd courses - 40 days; – on subsequent courses – 50 days. 2. State final certification - up to 4 months in accordance with the curriculum (Article 173 of the Labor Code of the Russian Federation)
	Training of scientific and pedagogical staff in graduate school, residency, assistantship-internship		30 days during the calendar year plus the time spent on travel from the place of work to the place of study and back at the expense of the employer (Article 173.1 of the Labor Code of the Russian Federation)
	For the degree of candidate or doctor of science		Preparation for the defense of a dissertation for a degree: – Candidate of Sciences – 3 months; – Doctor of Science – 6 months (art. 173.1)
	Professional average	Correspondence or part-time	1. Interim certification: - on the 1st and 2nd courses - 30 days; – on subsequent courses – 40 days. 2. State final certification - no more than 2 months (Article 174 of the Labor Code of the Russian Federation)
	General main	Part-time	State final certification - 9 days (Article 176 of the Labor Code of the Russian Federation)
	General average		State final certification - 22 days (Article 176)
unpaid	Professional higher (bachelor's, master's, specialist's)		Final certification after training at the preparatory department - 15 days (Article 173 of the Labor Code of the Russian Federation)
			Entrance tests - 15 days (Article 173)
			1. Intermediate certification - 15 days in the academic year (Article 173). 2. Passing the final state exams - a month; passing the final state exams and defending the final qualifying work - 4 months (Article 173)
	Professional average		Entrance tests - 10 days (Article 174 of the Labor Code of the Russian Federation)
			1. Intermediate certification - 10 days in the academic year. 2. State final certification - up to 2 months (Article 174)

Student employees, in addition to study leave, are provided with other guarantees. Thus, for employees studying state-accredited bachelor's programs, specialist's programs or master's programs, programs of secondary vocational education in part-time or part-time forms of education, for a period of up to 10 academic months before the start of passing the state final certification, a work week is set at their request, reduced at 7 o'clock. During the period of release from work, the specified employees are paid 50% of the average earnings at their main place of work, but not lower than the minimum wage.

And for some people who combine work and study, such guarantees are provided as payment for travel to the location of the educational organization and a day off from work.

The procedure for granting study leave

As already noted, the basis for study leave, subject to all other conditions, is a call certificate issued to an employee by an educational institution. The certificate-call form, which gives the right to provide guarantees and compensations to persons combining work with education, was approved by Order of the Ministry of Education and Science of the Russian Federation dated December 19, 2013 No. 1368. Simultaneously with the certificate, employers, as a rule, ask the employee for an application with a request for study leave.

Note:

The application is not a mandatory document in accordance with the law and its absence should not be the basis for refusing to leave the employee.

The deadline for the employee to submit a certificate of call is not established, so the employee can submit it at any time, even on the eve of the study leave.

On the basis of a certificate-call (and application), the employer issues an order to provide additional leave, which can be issued in the unified form T-6, approved by Decree of the State Statistics Committee of the Russian Federation dated 05.01.2004 No. 1. The order indicates what type of additional (study) leave provided: with or without average earnings. The employee must be familiar with the order under the signature.

Question:

Can an employer, at the request of an employee, grant a study leave of a shorter duration than indicated in the call certificate?

Rostrud in Letter No. 697-6-1 dated 12.09.2013 on this issue reported that since vacations provided in connection with studies in educational institutions of higher professional education on the job have a strictly designated purpose, they should be used only in established terms. Officials believe that the provision of study leave of a shorter duration than indicated in the call certificate, even if the employee requests it, does not fully comply with the requirements of the current legislation.

However, many experts believe that if the employee indicates a smaller number of days in the application, then he can be granted a vacation of a shorter duration, since there is no ban on this by law.

Information about additional holidays is also entered into the employee's personal card.

In the time sheet, the study leave with pay is marked with the letter code "U" or the digital "11", without pay - the letter "UD" or the digital "13".

Upon the exit of the employee from study leave, he must submit to the employer a tear-off part of the certificate.

By agreement between the employer and the employee, annual paid holidays may be added to study leave (part 2 of article 177 of the Labor Code of the Russian Federation).

It should be noted that for employees admitted to the competition for the degree of candidate of science or doctor of science, a separate procedure for obtaining study leave has been established - see the Rules for granting leave to persons admitted to the degree of candidate of science or doctor of science, approved by the Decree of the Government of the Russian Federation of 05.05.2014 No. 409.

Unlike other study holidays, an applicant for a Ph.D. or Ph.D. degree must notify the employer in writing of the intention to exercise their right to leave no later than one year before the expected start date of the leave.

Question:

Is it possible to provide an employee with study leave with subsequent dismissal in accordance with Art. 127 of the Labor Code of the Russian Federation?

Due to the fact that there are norms in the Labor Code that do not specify what kind of vacation is meant, the question arises - does study leave apply to these holidays (similar problems arise with leave without pay)? The issue is debatable, but in practice, study leave with subsequent dismissal is applied.

However, in Art. 127 of the Labor Code of the Russian Federation states that upon dismissal, an employee may be provided with all unused vacations. Here, obviously, we are not talking about study leave, but about the annual main and additional ones. Therefore, the provisions of Art. 127 does not apply to study leave.

Moreover, the employee-student has the right to terminate the employment contract at his own request, notifying the employer in writing no later than 2 weeks, unless a different period is established by law. The period begins the next day after the employer receives the employee's application for dismissal (part 1 of article 80 of the Labor Code of the Russian Federation).

Question:

Is it possible, at the initiative of the employer, to dismiss an employee while he is on study leave?

But in this case, we believe, the provision of Part 6 of Art. 81 of the Labor Code of the Russian Federation, according to which it is not allowed to dismiss an employee at the initiative of the employer (with the exception of the case of liquidation of an organization or termination of activity by an individual entrepreneur) during periods of his temporary disability and vacation, applies to study leave. Therefore, if, for example, an employee wants to be fired due to a reduction in the number or staff, notifying him 2 months in advance, and the date of his dismissal falls during the study leave, then the employment contract cannot be terminated on the same day. An employee must be fired on the first day after he returns from vacation.

Question:

An employee with whom a fixed-term employment contract has been concluded for the duration of the performance of the duties of an absent employee brought a call certificate a few days before the latter went to work. Should we give him study leave and for how many days?

There are several opinions on this issue.

Someone thinks that an employee should be fired on the day the main employee leaves due to Part 3 of Art. 79 of the Labor Code of the Russian Federation, but provide study leave and pay it in full. Such a conclusion, in particular, was made in the Ruling of the Leningrad Regional Court of 08/06/2015 No. 33‑3731/2015.

The second position: it is necessary to extend the fixed-term employment contract with the employee for the duration of the study leave, and make settlements with him on the last working day, that is, by analogy with Art. 127 of the Labor Code of the Russian Federation when granting leave to an employee with subsequent dismissal.

However, we adhere to the third position: if the date of departure of the main employee is known, the employment contract is terminated when he returns to work, since study leave is not a basis for extending a fixed-term contract. A study leave should be granted and paid only within the terms of the fixed-term employment contract.

Study leave payment

So, for the time the employee is on study leave, he is paid average earnings. Its calculation is made in accordance with Art. 139 of the Labor Code of the Russian Federation and the Regulations on the peculiarities of the procedure for calculating the average wage, approved by Decree of the Government of the Russian Federation of December 24, 2007 No. 922 (hereinafter - Regulation No. 922).

It is necessary to pay the average earnings accrued to the employee during the study leave 3 calendar days before it starts (Article 136 of the Labor Code of the Russian Federation, Letter of Rostrud dated July 30, 2014 No. 1693-6-1).

The average daily earnings for vacation pay are calculated for the last 12 calendar months (billing period) (clause 4 of Regulation No. 922). At the same time, the average daily earnings to pay for vacations provided in calendar days are calculated by dividing the amount of wages actually accrued for the billing period by 12 and the average monthly number of calendar days (29.3) (clause 10 of Regulation No. 922).

The amount of vacation pay due to the employee is determined by multiplying the average daily earnings by the number of calendar days in the period payable (that is, by the number of calendar days of study leave) (clause 9 of Regulation No. 922).

By virtue of clause 14 of Regulation No. 922, when determining the average earnings for paying for additional study holidays, all calendar days (including non-working holidays) falling within the period of such holidays provided in accordance with the call certificate of the educational institution are subject to payment.

For example, if the study leave coincided with the New Year holidays, the employee will retain the average earnings for these holidays.

Note:

If an employee falls ill during the study leave, he will not be paid temporary disability benefits, regardless of whether he retained average or partial earnings during the study leave or not.

Question:

If an employee passed the exams ahead of schedule, is it possible to withhold from him the amount of average earnings for the remaining vacation period?

Since the study leave was already paid according to the average salary before it began, and the Labor Code does not allow deducting this amount or part of it upon dismissal of a person working under a fixed-term employment contract due to the expiration of this contract, the employer has no right to keep the specified amount at the final settlement.

There are also no legal grounds to withhold previously paid vacation pay upon expulsion from an educational institution until the end of the study leave. Based on Art. 137 of the Labor Code of the Russian Federation, deductions from the employee's salary are made only in cases provided for by the Labor Code of the Russian Federation and other federal laws.

If the study leave coincided with the annual

By virtue of Art. 124 of the Labor Code of the Russian Federation, annual paid leave must be extended or postponed for another period determined by the employer, taking into account the wishes of the employee, in cases of temporary incapacity for work of the latter, the performance of state duties by him during the annual paid leave, if the labor legislation provides for exemption from work, and in in other cases provided for by labor legislation, local regulations. That is, there is no instruction on the extension or postponement of annual leave in case of coincidence with study leave, as well as the corresponding obligation of the employer.

At the same time, as already noted, by virtue of Part 2 of Art. 177 of the Labor Code of the Russian Federation to the additional holidays provided for in Art. 173 - 176 of the Labor Code of the Russian Federation, annual paid holidays can be added by agreement of the employer and employee.

Thus, in agreement with the employee (on the basis of his application), the employer must either add annual leave to the study leave, or transfer it to another time.

In the Appellate Ruling of the Yaroslavl Regional Court dated July 23, 2012 in case No. 33‑3831/2012, the court considered the application of an employee who was not granted study leave by the employer, since it coincided with the annual leave. The conclusion of the court: an employee studying on the job is entitled to both holidays, and if the study holiday coincides with the main one, the employer, in agreement with the employee, must transfer the main leave to another period or extend it.

If the employee and the employer did not have time to agree on whether to add the annual leave to the study or postpone it, the employer can extend the leave on his own, but only if this possibility is established by a local regulatory act.

* * *

So, we analyzed the procedure and features of granting study leave. And as you can see, there are quite a few issues that are not regulated by labor legislation. Before making any changes or clarifications to the legislation, we considered the situation from our point of view, guided by the position of judges and regulatory authorities. Nevertheless, you must remember and follow the basic rules.

Subparagraph “a” of clause 17 of the Regulations on the peculiarities of the procedure for calculating benefits for temporary disability, for pregnancy and childbirth, monthly childcare benefits for citizens subject to compulsory social insurance in case of temporary disability and in connection with motherhood, approved. Decree of the Government of the Russian Federation dated June 15, 2007 No. 375.

V. D. Tarasov,

expert of the magazine "Personnel department of a state (municipal) institution" No. 8, August, 2017.

• HR records management

Keywords:

1 -1

Study leave is a leave for an employee who combines work with study. Under what conditions is the employer obliged to provide such leave? How to calculate and pay it correctly, including part-time workers? Let's break down the rules and answer common questions

Rule 1. Study leave - for certain programs

The employer is obliged to provide study leave to employees who work and receive education:

• higher education in bachelor's, specialist's or master's programs, as well as enroll in these educational programs (Article 173 of the Labor Code of the Russian Federation);
• higher education - training of highly qualified personnel or are applicants for the degree of candidate or doctor of science (Article 173.1 of the Labor Code of the Russian Federation);
• secondary vocational education, and also enter training in this type of education (Article 174 of the Labor Code of the Russian Federation);
• basic general education or secondary general education in part-time education (Article 176 of the Labor Code of the Russian Federation).

Rule 2. Conditions for granting study leave - there are nuances

• Condition 1. Guarantees and compensations for employees who combine work with education are provided upon receiving an education of the appropriate level for the first time (Article 177 of the Labor Code of the Russian Federation).

The form of study (full-time, part-time, part-time) is not a condition for granting educational leave, but affects its payment:

1. If the employee is studying full-time, then study leave is not paid.
2. If on a part-time or part-time form of study, then the average earnings are retained for the period of study leave (Articles 173, 173.1, 174, 176 of the Labor Code of the Russian Federation).

Example. The employee has a secondary vocational education (graduated from college). He decided to go to college in another specialty - in this case, he cannot count on the study leave again.

Guarantees and compensation are due to employees who already have a vocational education of the appropriate level and whom the employer sent to receive education in accordance with an employment contract or apprenticeship agreement concluded between the employee and the employer in writing.

• Condition 2. If an employee works and studies simultaneously in two organizations that carry out educational activities, guarantees and compensations are provided for one of these organizations (at the choice of the employee) (Article 177 of the Labor Code of the Russian Federation).
• Condition 3. The educational institution in which the employee is trained has state accreditation. The register of accredited educational organizations can be found on the website of the Federal Service for Supervision in Education and Science.

Exception: the employer has the right to grant study leave to an employee who is studying at an educational institution without state accreditation, if this is specified in the labor (collective) agreement.

• Condition 4. Study leave can be granted only on the basis of a certificate-call from an educational institution.
• Condition 5. Study leave is granted for a duration not exceeding that specified in the Labor Code of the Russian Federation.

Exception: the employer can provide educational leave for longer periods, provided that this is specified in the employment (collective) agreement.

• Condition 6. Study leave is granted only at the main place of work (Article 287 of the Labor Code of the Russian Federation). A part-time worker during the session must continue to work in his free time from study or take a leave for this time without pay (pay attention to rules 4 and 5).

Example. At employee two jobs: permanent and part-time. He combines work with higher education. Study leave is allowed only in one place of work, for example, in the organization in which he works constantly. The employee had a question: is it possible to undergo training and at the same time work in an organization that is a second place of work - part-time? An employee can apply to the employer of the organization where he works part-time with a request to grant him leave at his own expense for the period of study. The employer has the right to refuse the request of the employee, referring to the fact that such a condition is not spelled out in the labor (collective agreement).

Rule 3. Registration of study leave. Procedure

1. The employee applies to the employer with a statement, which is accompanied by a certificate-call from the educational institution.
2. The head issues an order (form No. T-6 or No. T-6a) to provide the employee with a guarantee.
3. The accountant draws up a note-calculation, where the average earnings will be calculated.
4. Data on study leave is recorded in the employee's personal card (form No. T-2), personal account (form No. T-54 or No. T-54a) and in the time sheet (form No. T-12 or No. T-13).

Rule 4. Study leave pay

Example. The employee passes the final state certification for up to 4 months upon receipt of higher education under the bachelor's program. During this period, he retains the average earnings. But if an employee passes entrance tests to such an educational institution, then the average salary is no longer paid. An employee can only count on retaining his place of work for the period of entrance examinations.

For more information about the cases when you should pay the average salary, and when not, we recommend that you look at Art. 173-176 of the Labor Code of the Russian Federation. It also indicates other guarantees that an employee who combines work with training can count on. For example, employees who successfully master state-accredited bachelor's programs, specialist's programs or master's programs in part-time and part-time forms of study, for a period of up to 10 academic months before the start of passing the state final certification, a work week is set at their request, reduced by 7 hours.

Average earnings for the time an employee is on study leave are paid in accordance with the rules of Decree of the Government of the Russian Federation of December 24, 2007 No. 922.

From the amount received, personal income tax should be withheld and this amount should be included in the base for calculating insurance premiums to off-budget funds of the Russian Federation. When calculating income tax, these amounts can be included in labor costs (Article 255 of the Tax Code of the Russian Federation).

Rule 5. Calculation of average earnings during study leave

The average earnings for the time the employee is on study leave should be paid on time. A common question: “Payments for study leave in the same way as for the next one, we make 3 days before the vacation?”

Yes, that's right (part 9 of article 136 of the Labor Code of the Russian Federation, Letter of Rostrud dated July 30, 2014 No. 1693-1).

The employee must receive the average salary before the start of the study leave. It is a mistake to pay average earnings after the employee brings a confirmation certificate.

You may have another question: what to do if the employee did not bring a confirmation certificate? In accounting, reverse entries should be made for the amount of average earnings paid to the employee before the start of the vacation.

Answers to common questions about study holidays

The employee wants to add the main vacation to the study leave. Is it correct?

• The employee's request is invalid. The issue of joining the study leave to the annual paid leave is decided by agreement between the employer and the employee (part 2 of article 177 of the Labor Code of the Russian Federation).

Is it possible to partially use study leave?

• Study leave is a right, not an obligation, of an employee. The right to grant an employee a study leave of a fixed duration is given, in particular, by a certificate of summons, which, among other things, determines the terms of such leave. This follows from Part 4 of Art. 177 of the Labor Code of the Russian Federation, the form of a certificate of call, approved by Order of the Ministry of Education and Science of Russia dated December 19, 2013 No. 1368. Accordingly, an employee can exercise his right to study leave only within the period specified in the certificate of call. At the same time, labor legislation does not prohibit the use of such study leave in part.

Does an employer have the right to refuse an employee a study leave due to a production need?

• No, not right. The provision of study leave on the basis of a certificate of call does not depend on the discretion of the employer. The employee has the right to take such leave, even if the employer does not agree.

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It is not uncommon for individuals to combine work with education in educational institutions. Guarantees and compensations for such employees are established by Chapter 26 of the Labor Code of the Russian Federation. These include: the provision of additional paid leave and leave without pay, payment for travel to the place of study, reduction in the length of the working day or working week.

Recall that (Article 164 of the Labor Code of the Russian Federation):

guarantees are understood as the means, methods and conditions by which the exercise of the rights granted to employees in the field of social and labor relations is ensured, and

under compensation - cash payments established for the purpose of reimbursement to employees of costs associated with the performance of their labor or other duties provided for by the Labor Code of the Russian Federation and other federal laws.

The list of guarantees and benefits provided to the employee depends both on the level of education received (secondary general, primary vocational, secondary vocational, higher professional, postgraduate professional), and on the form of education (full-time, part-time, evening).

The main general educational programs include, in particular, the educational programs of basic general and secondary general education.

The main professional educational programs include:

educational programs of secondary vocational education - training programs for skilled workers, employees and training programs for mid-level specialists;

educational programs of higher education:

Bachelor's, specialist's, master's programs;

Programs for the training of scientific and pedagogical personnel in graduate school (adjuncture), residency and assistantship-internship programs;

main vocational training programs - vocational training programs for the professions of workers, positions of employees, retraining of workers, employees and advanced training of workers, employees.

Additional educational programs include (clause 4, article 12 of Law N 273-FZ):

additional general education programs: additional general developmental and pre-professional programs;

additional professional programs: advanced training and professional retraining programs.

It should be noted that the receipt of education under the training programs for mid-level specialists by an employee who has a diploma of secondary vocational education with the qualification of a qualified worker or employee, by virtue of paragraph 5 of Article 68 of Law N 273-FZ, is not considered as obtaining a second or subsequent secondary vocational education.

Note. According to the Federal Law of December 29, 2013 N 273-FZ "On Education in the Russian Federation", which entered into force on September 1, 2013, the main educational programs include basic general education, basic professional educational programs and basic vocational training programs (clause 3 of article 12 Law N 273-FZ).

The receipt by an employee with a bachelor's degree of higher professional education under the master's program cannot be considered as the receipt of a second higher professional education by him and does not deprive him of the right to use the guarantees provided for by the legislation of the Russian Federation.

It is also not considered as obtaining a second or subsequent higher education, and training in master's programs by persons with higher professional education, confirmed by the assignment of the qualification "certified specialist" to them (clause 15 of article 108 of law N 273-FZ, introduced by Federal Law of 03.02.14 N 11-FZ "On Amendments to Article 108 of the Federal Law "On Education in the Russian Federation"").

Note. The second higher education is now considered to be the education received (subclause 1, clause 8, article 69 of Law N 273-FZ):

• for bachelor's or specialist's programs - by persons who have a bachelor's degree, a specialist's degree or a master's degree;
• for master's programs - by persons who have a specialist diploma or a master's degree;
• for residency programs or assistantship-internship programs - by persons who have a diploma of completion of residency or a diploma of completion of assistantship-internship;
• for training programs for scientific and pedagogical personnel - by persons who have a postgraduate diploma (adjuncture) or a candidate of science diploma.

study leave

The most significant guarantee for employees who combine work with study is study leave. It is provided in calendar days, regardless of the actual duration of the employee's work with the employer. Moreover, study leave can be both paid and without saving average earnings. What kind of vacation an employee is entitled to depends on the form of training, the type of educational programs and a number of other conditions.

- paid

Educational leave with the preservation of the average wage is granted to employees who study:

in higher education institutions on a part-time or part-time (evening) form of education;

institutions of secondary vocational education (technical schools, colleges) on a part-time or part-time (evening) form of education;

educational institutions of primary vocational education (schools, training courses) regardless of the form of education;

evening (shift) educational institutions (schools, gymnasiums), regardless of the form of education.

Form and type of training	Duration of paid study leave (vacation)	Base
Correspondence education programs: training of scientific and pedagogical staff in graduate school (adjuncture); residency; assistantship-internships	30 calendar days annually during training; additional time spent on travel from the place of work to the place of study and back	Article 173.1 of the Labor Code of the Russian Federation
Employees mastering the training programs for scientific and pedagogical personnel in graduate school (adjuncture), as well as persons who are applicants for the degree of candidate of science	Three months - to complete the dissertation for the degree of candidate of sciences	Article 173.1 of the Labor Code of the Russian Federation
Correspondence and part-time (evening) forms of education for state-accredited programs: bachelor's, specialist's and master's programs	40 calendar days - to pass the intermediate certification in the first and second years; 50 calendar days - to pass an intermediate certification at each of the subsequent courses (when mastering educational programs in a shortened time - in the second year); up to four months - to pass the state final certification	Article 173 of the Labor Code of the Russian Federation
Correspondence and part-time (evening) forms of education for programs of secondary vocational education that have state accreditation	30 calendar days - for passing intermediate certification in the first and second years; 40 calendar days - to pass the intermediate certification at each of the subsequent courses; up to two months - to pass the state final certification	Article 174 of the Labor Code of the Russian Federation
Part-time form of education according to state-accredited educational programs of basic general or secondary general education	To pass the state final certification: 9 calendar days - according to the educational program of basic general education; 22 calendar days - according to the educational program of secondary general education	Article 176 of the Labor Code of the Russian Federation

The established duration of study holidays provided with the preservation of average earnings, depending on the type of study, is given in the table.

Paid study leave is granted to an employee if the following conditions are simultaneously met (Articles 173, 174, 176, 177 of the Labor Code of the Russian Federation):

state accreditation of educational programs;

the employee receives education of this level for the first time;

successful employee training.

There is no deciphering of the concept of "successful training" in the labor legislation. It is logical to assume that if a trainee has submitted a certificate-call from an educational institution, and earlier, after the end of study holidays, brought a certificate-confirmation (from the end of February this is the tear-off part (second) of the certificate-call), training can be considered successful.

If an employee is studying at two educational institutions at once, then educational leave is granted only in connection with studying at one of these institutions at the employee's choice (part 4 of article 177 of the Labor Code of the Russian Federation). At the same time, the right to choose is not limited to one university by the mentioned norm.

Note. Until September 1, 2013, Article 175 of the Labor Code of the Russian Federation provided for guarantees and compensations for employees studying in educational institutions of primary vocational education. Paragraph 21 of Article 80 of the Federal Law of July 2, 2013 N 185-FZ, this provision was abolished. This is due to the fact that, on the basis of Article 108 of Law N 273-FZ, primary vocational education is equated with secondary vocational education in training programs for skilled workers (employees). And for persons combining work with receiving secondary vocational education, and employees entering educational programs for secondary vocational education, guarantees and compensations are established by Article 174 of the Labor Code of the Russian Federation.

Example 1

In order to pass an interim attestation at a university in the first year, an employee with an application for study leave submitted a certificate-call from one educational institution. At the same time, the name of this institution appeared in the application submitted by him.

To pass such certification in the second year, in the application for study leave, he indicated the name of another educational institution, from which the certificate-call was submitted.

In both cases, the employer must provide the employee with study leave.

The right to choose an educational institution cannot affect the total duration of study holidays.

Vacations related to studying at an educational institution of higher or secondary vocational education are granted for the number of days specified in the call certificate, but not more than the number specified in Articles 173 and 174 of the Labor Code of the Russian Federation.

Usually, in order to provide study leave, an employee studying at a higher or secondary educational institution submits an application, to which he encloses a certificate-call from an educational institution. The call-out form, which gives the right to provide guarantees and compensations to employees who combine work with education, was approved by order of the Ministry of Education and Science of Russia dated December 19, 2013 N 1368. It has been used since February 25 of this year. And it is the same for all training programs. Prior to this, various forms of certificates were used for students in secondary and higher educational institutions (approved by orders of the Ministry of Education of Russia dated 12.17.02 N 4426 and dated 05.13.03 N 2057, respectively). In the annexes to the mentioned orders, two forms of certificates were given: one of them was used if the employee was entitled to study leave with the preservation of average earnings (Appendix 1), the other - if unpaid leave was required (Appendix 2).

When specifying the last name, first name and patronymic of the applicant for study leave, the call certificate also contains his status: student, student of the preparatory department - or admission to the entrance exams.

All possible reasons for granting study leave are now listed in the help-call:

• passing entrance exams;
• intermediate certification;
• state final certification;
• final examination;
• preparation and defense of the final qualifying work;
• passing the final state exams;
• completion of a dissertation for the degree of candidate of sciences, one of which must be indicated.

The certificate also contains the level of education (basic general, secondary general, secondary vocational, higher) carried out by an educational institution according to educational programs that are mastered by trainees.

The manual states:

• form of education (full-time, part-time, part-time);
• course of study (for students);
• the name of the accreditation body that issued the certificate of state accreditation to the educational institution;
• details of the certificate of state accreditation;
• start and end dates of study leave and its duration in calendar days;
• code and name of the profession.

This information allows the employer to verify that the required conditions are met when granting study leave.

Note. All educational institutions that implement training programs, the development of which by an employee-student allows him to qualify for guarantees and compensations provided for by the mentioned articles 173, 173.1, 174 and 176 of the Labor Code of the Russian Federation, are now turning to the new form of a call-back.

Study leave is supposed to be granted strictly within the time limits specified in the call certificate. It happens that a student employee indicates in the application for the study leave a shorter period than that given in the call certificate. It is understandable that the employee wants to have as little loss of money as possible. After all, the pay for a day of study leave is lower than the pay for an employee's working day. Therefore, he tries to document a shorter period of his vacation in order to increase the number of working days. Moreover, the use of such leave is a right, not an obligation of an employee, and in the labor legislation of the Russian Federation there is no rule prohibiting the partial use of study leave.

The Trudoviks, on the other hand, are leaning towards something else. The employer, in their opinion, is not entitled to reduce the period of study leave specified in the call certificate. This additional leave has a strictly designated purpose and should only be used within the stipulated time. Reducing the period of study leave can adversely affect the effectiveness of training and affect the overall performance of the student. At the same time, officials believe that the reduction in the period of study leave will not fully comply with the current legislation of the Russian Federation (letter of Rostrud dated 12.09.13 N 697-6-1).

Help-call, as mentioned above, consists of two parts. The first part of it is filled in by the educational institution and transferred to the employer. On the basis of this part of the certificate, they are granted study leave to the employee. The initially blank second part of the certificate is issued by the educational institution after the end of the relevant training. This part is a confirming document that the employee is studying, and this, in turn, confirms the intended use of the study leave.

Note that the Labor Code of the Russian Federation does not say anything about guarantees to an employee if he takes exams for certificates of basic general or secondary complete general education as an external student. In the law N 273-FZ there is only a mention of the possibility of persons who do not have a basic general or secondary general education to pass externally an intermediate and state final certification in an organization that carries out educational activities according to the corresponding state-accredited basic general education program (clause 3 of Art. 34 of Law N 273-FZ). At one time, guarantees for such a case were spelled out in the Regulations on Benefits for Workers and Employees Combining Work with Studying in Educational Institutions (approved by Decree of the Council of Ministers of the USSR of December 24, 1982 N 1116). But this document, in accordance with Decree of the Government of the Russian Federation of March 28, 2012 N 245, from April 14, 2012, was recognized as not valid on the territory of the Russian Federation (clause 10 of Appendix N 1 to Decree N 245).

- unpaid holidays

In some cases, the employer, at the request of the employee, is obliged to provide him with study leave without pay. Such study holidays are also calculated in calendar days, and their duration depends on the purposes for which these holidays will be used.

If an employee combines work with full-time study in state-accredited bachelor's, specialist's or master's programs at a higher educational institution, then the employer, by virtue of Part 2 of Article 173 of the Labor Code of the Russian Federation, is obliged to provide him with unpaid leave for a duration of:

15 calendar days in the academic year - for the period of passing the intermediate certification for each course;

four months - for the period of preparation and defense of the final qualifying work and passing the final state exams;

one month - for the period of passing the final state exams.

A similar rule has been established for the case of combining work with full-time study in state-accredited educational programs of secondary vocational education. An employee who carries out such studies is entitled to leave without pay for a duration (part 2 of article 174 of the Labor Code of the Russian Federation):

10 calendar days in the academic year - for the period of passing the intermediate certification for each course;

up to two months - to pass the state final certification.

If the employee is only going to enter a higher professional educational institution, then for the period of passing the entrance exams he is granted leave without pay for 15 calendar days (part 2 of article 173 of the Labor Code of the Russian Federation). Upon admission to a secondary vocational educational institution, the duration of such leave is 10 calendar days (part 2 of article 174 of the Labor Code of the Russian Federation).

When passing final exams at the preparatory department of an educational institution of higher professional education, leave without pay is granted for 15 calendar days in the academic year (part 2 of article 173 of the Labor Code of the Russian Federation).

Other warranties

Employees studying in part-time and part-time forms of study in state-accredited educational programs:

bachelor's, specialist's, master's degree;

secondary vocational education, -

for a period of up to 10 academic months before the start of the state final certification, a working week is established at their request, reduced by 7 hours. During the period of release from work, these employees are paid 50% of the average earnings at their main place of work, but not less than the minimum wage (part 4 of article 173, part 4 of article 174 of the Labor Code of the Russian Federation).

Possible abbreviation:

providing an employee with one day off from work per week, or

reduction of working hours during the week -

determined by agreement of the parties to the employment contract (part 5 of article 173, part 5 of article 174 of the Labor Code of the Russian Federation).

Note. If during the year an intermediate certification or passing exams is held at an educational institution several times, then the study leave is divided into parts in accordance with the call certificate. At the same time, the total number of days of study leave should not exceed the norms established by the legislation of the Russian Federation.

Employees who are studying programs for the training of scientific and pedagogical personnel in graduate school (adjuncture), residency programs and assistantship-internships in part-time education are entitled to one free day from work per week with payment in the amount of 50% of the wages received.

The employer has the right to provide the indicated persons in the last year of study at their request with no more than two additional days free from work per week without pay (part 1 of article 173.1 of the Labor Code of the Russian Federation).

It was mentioned above that for these persons, the time spent on traveling from the place of work to the place of study and back is added to the annual additional leave, while maintaining the average earnings. The specified travel is paid by the employer (part 1 of article 173.1 of the Labor Code of the Russian Federation).

The legislator has imposed an obligation on the employer to pay for the travel of part-time workers studying in educational institutions located in other cities. So, employees who successfully master state-accredited bachelor's, specialist's or master's programs, the employer must once in the academic year pay for travel to the location of the relevant organization engaged in educational activities, and back (part 3 of article 173 of the Labor Code of the Russian Federation).

Note. Guarantees and compensations for persons who combine work with study are provided upon receiving an education of the appropriate level for the first time. The fulfillment of this condition is not required in the case (part 3 of article 177 of the Labor Code of the Russian Federation):

referral by the employer to receive an appropriate professional education of an employee who already has an education of this level, and

if such an obligation of the employer is prescribed either in the employment contract or in a specially concluded agreement between him and the employee.

For employees who are mastering state-accredited educational programs of secondary vocational education, the employer is obliged to pay travel to the location of the educational organization and back once in the academic year in the amount of 50% of the fare (part 3 of article 173 of the Labor Code of the Russian Federation).

The type of transport and the route is chosen by the student.

The procedure for paying for travel by labor legislation is not established, therefore it is determined by an agreement between the employee and the employer. In our opinion, in order to pay the mentioned compensation, the employee must submit:

application for payment of travel to the place of study and back;

a document that confirms studying at the relevant educational institution (certificate, student card, grade book, etc.);

travel documents certifying travel to and from the place of study.

The absence of an educational institution of state accreditation for the implementation of the said payment can be "compensated" by the obligation of the employer to pay for travel to students, prescribed in a collective or employment contract.

The norm establishing the relevant condition in terms of the first education, according to the Constitutional Court of the Russian Federation, does not prevent the issue of guarantees and compensations for employees receiving a second higher education within the framework of collective agreement and individual agreement regulation and does not exclude the obligation of the employer to provide benefits to such employees in connection with training, if it is provided for by a collective agreement or an agreement between the employee and the employer.

The provision of Part 1 of Article 177 of the Labor Code of the Russian Federation in itself cannot be considered as restricting the constitutional rights and freedoms of citizens wishing to receive a second higher education, and violating the provisions of Parts 2 and 3 of Article 55 of the Constitution of the Russian Federation. It cannot be regarded as violating the equality of all before the law and the court and the equality of human and civil rights and freedoms (parts 1 and 2 of article 19 of the Constitution of the Russian Federation), since the constitutional principle of equality does not imply the requirement to provide equal guarantees and compensations to persons belonging to to different categories - those who receive higher education for the first time and already have an education of this level (definition of the Constitutional Court of the Russian Federation of 08.04.04 N 167-O).

Guarantees and compensations for employees who combine work with the development of educational programs that do not have state accreditation:

bachelor's, specialist's or master's degree;

secondary vocational education;

basic general or secondary general education in full-time-correspondence form of education, -

may be established by a collective agreement or an employment contract (Articles 173, 174, 176 of the Labor Code of the Russian Federation).

Vacation registration

Based on the application of the employee and the reference-call, an order is issued to grant study leave.

On January 1, 2013, the Federal Law of December 6, 2011 N 402-FZ "On Accounting" came into force. It does not contain requirements on the need to draw up primary accounting documents according to unified forms. The Ministry of Finance of Russia in the information N PZ-10/2012 noted that the forms of primary accounting documents established by the authorized bodies in accordance with other federal laws and on their basis remain mandatory. According to the Trudoviks, after the entry into force of Law N 402-FZ, non-governmental organizations have the right to use the forms of primary accounting documents developed by them independently (letters of Rostrud dated 01/09/13 N 2-TZ, dated 01/23/13 N PG / 10659-6-1, dated 14.02.13 N PG / 1487-6-1).

The requirements for primary accounting documents contained in Article 9 of Law N 402-FZ can only be partially applied to documents used to record events in the field of labor relations. Paperwork using independently developed forms for accounting for labor and its payment may cause claims from inspectors, since the developed form may not take into account (not fully take into account) the requirements of labor legislation for a particular document. Therefore, at present, in our opinion, in terms of compiling documents on accounting for labor and its payment, it is still more expedient for organizations to use unified forms approved by the Decree of the State Statistics Committee of Russia dated 05.01.04 N 1. The use of these unified forms in accordance with paragraph 4 of article 9 of the law N 402-FZ must be approved either by a separate order of the head of the organization, or by an annex to the accounting policy.

When using unified forms, an order for the provision of study leave is issued in the form N T-6. In section "B" of this form, it is necessary to reflect the type of vacation in accordance with Chapter 26 of the Labor Code of the Russian Federation (additional leave with the preservation of average earnings or without pay). In parentheses, you can give the common name "training". The column "Period of work" is not filled in, since the Labor Code of the Russian Federation does not associate the provision of this leave with the period of work.

Section "B" indicates the total number of calendar days and the period of vacation (vacations) with the specific dates of its (their) beginning and end.

The signed order is registered in the register of orders for granting leave.

If a vacation is issued with the preservation of average earnings, the order with the signature of the employee is transferred to the accounting department for accrual of vacation pay. At the same time, a note-calculation is drawn up on the provision of leave to the employee (form N T-60): the personnel department fills out section "B" in terms of additional leave, while the accounting department provides data on the calculation of vacation pay.

Study leave is paid based on the average salary of the employee. Payment for study leave is calculated in the same way as for annual paid leave.

Recall that the average daily earnings () for paying holidays and paying compensation for unused holidays are calculated for the last 12 calendar months by dividing the amount of accrued wages by 12 and by 29.4 (average monthly number of calendar days) (part 4 of article 139 of the Labor Code RF).

But in most cases, student workers do not work out the full billing period. If one or several months of the billing period are not fully worked out or the time was excluded from it when:

the employee retained the average salary in accordance with the legislation of the Russian Federation, with the exception of breaks for feeding the child, provided for by the labor legislation of the Russian Federation, and (or)

the employee received temporary disability benefits or maternity benefits, -

as well as in other cases specified in paragraph 5 of the Regulations on the peculiarities of the procedure for calculating the average wage (approved by Decree of the Government of the Russian Federation of December 24, 07 N 922), the average daily wage is calculated by dividing the amount of actually accrued wages for the billing period by the aggregate of the average monthly number calendar days multiplied by the number of full calendar months, and the number of calendar days in partial calendar months (clause 10 of the said provision).

The number of calendar days in an incomplete calendar month is calculated by dividing the average monthly number of calendar days (29.4) by the number of calendar days of this month and multiplying by the number of calendar days falling on the time worked in this month.

Example 2

The employee was granted study leave from June 9 to July 3, 2014 for a period of 25 calendar days to pass an interim certification. The billing period from June 1, 2013 to May 31, 2014 was not fully worked out: from June 10 to June 29 and from December 2 to December 21, he was on study leave, and from September 2 to September 29 - on annual paid leave. The salary of an employee in the billing period is 21,500 rubles. During this period, he received quarterly bonuses of 18,268, 17,693, 18,627 and 26,200 rubles, which were calculated based on the actual hours worked.

For not fully worked months of the billing period, the employee was accrued: 5657.89 rubles. (21,500 rubles: 19 days x 5 days) in June, 1023.81 rubles. (21,500 rubles / 21 days x 1 day) in September, 6840.91 rubles. (21,500 rubles: 22 days x 7 days) in December.

In total, for the billing period, the employee was accrued 287,810.61 rubles (21,500 rubles / month x 9 months + 5657.89 rubles + 1023.81 rubles + 6840.91 rubles + 18 268 rubles + 17 RUB 693 + RUB 18,627 + RUB 26,200).

In June, 5 days worked account for 9 calendar days. Based on this, when calculating the average daily earnings for this month, hours worked account for 8.82 cal. days (29.4 x 9:30). In September, the employee worked one working day - the 30th, he has the same number of calendar days, but 0.98 cal is taken into account. days (29.4 x 1:30). In December, 7 days worked account for 10 calendar days, based on this, 9.48 days are taken into account. (29.4 x 10:31).

The average daily earnings - 1013.85 rubles / day. (287,810.61 rubles / (29.4 days / month x 9 months + 8.82 days + 0.98 days + 9.48 days)). For study leave, the employee was accrued 25,346.25 rubles. (1013.85 rubles/day x 25 days).

It is possible that the days of study leave will have a non-working holiday. The legislation does not provide for the extension of study holidays by the number of non-working holidays that fall during such a vacation, since the rule on extending vacation for non-working holidays that fall during the vacation period applies only to annual basic or annual additional holidays (Article 120 of the Labor Code of the Russian Federation). Therefore, when determining the amount of vacation pay for additional educational leave, all calendar days (including non-working holidays) falling within the period of such vacations provided in accordance with the call certificate of the educational institution are subject to payment.

During the study leave, there is a non-working holiday on June 12. And he was included in the number of paid 25 calendar days indicated in the call certificate.

The rule on non-extension of study leave also applies to the period of incapacity for work. If the period of temporary disability fully or partially coincides with the period of study leave, the corresponding allowance is not paid (subclause 1, clause 1, article 9 of the Federal Law of December 29, 2006 N 255-FZ "On Compulsory Social Insurance in case of temporary disability and maternity", subparagraph "a", paragraph 17 of the Regulations on the peculiarities of the procedure for calculating benefits for temporary disability, for pregnancy and childbirth for citizens subject to compulsory social insurance in case of temporary disability and in connection with motherhood, approved by the Decree of the Government of the Russian Federation of 15.06.07 N 375).

If at the end of the study leave the employee continues to get sick, then starting from the day when he was supposed to go to work, he should accrue temporary disability benefits (part 1 of article 183 of the Labor Code of the Russian Federation, clause 2 of article 5, clause 1 of article 13 of Law N 255-FZ).

Vacation payment must be made no later than three days before it starts (part 9 of article 136 of the Labor Code of the Russian Federation). This rule also applies to educational paid holidays. In practice, employers not so rarely neglect this rule, thereby infringing on the rights of employees. The payment of remuneration for study leave after the employee provides the second part of the certificate-call is a violation of the labor legislation of the Russian Federation.

An entry on the provision of educational leave is also made in section VIII "Vacations" of the personal card (form N T-2) of the employee.

In the timesheet (form T-13) or in the timesheet and payroll calculation (form T-12) (approved by the resolution of the State Statistics Committee of the Russian Federation of 05.01.04 N 1) when granting study leave:

with the preservation of wages, the letter code "U" or the digital code "11" are affixed;

without saving earnings - the letter "UD" or the digital "13".

The certificate-call, on the basis of which study leave is granted, must be stored in the organization for at least five years (clause 417 of the List of typical administrative archival documents generated in the course of the activities of state bodies, local governments and organizations, indicating the storage periods, approved by order Ministry of Culture of Russia dated 25.08.10 N 558).

If the employee is registered on the terms of internal combination, he is provided with paid study leave only at the main place of work, unless otherwise provided in the collective agreement of the university. Concurrently, he must issue a leave without maintenance for the duration of the study leave. With this in mind, the calculation of the retained average earnings is also carried out.

As you can see, the provision of study leave on the basis of a call certificate does not depend on the discretion of the employer. Additional leave for persons who combine work with education is one of the types of guarantees provided for by the current legislation of the Russian Federation (mentioned articles 173, 173.1, 174, 176 of the Labor Code of the Russian Federation). Therefore, the employee has the right to take such leave even if he disagrees. Employers should remember that their actions:

for failure to provide the employee with study leave, which is due to him in accordance with the law or the collective agreement, labor contract, agreement, local regulatory act of the organization;

granting less than the required leave;

replacement of study leave with annual paid leave;

registration of unpaid leave in the case when it must be paid, -

as well as the failure to provide other guarantees and compensations related to study leave, may be appealed by the employee in court (Article 391 of the Labor Code of the Russian Federation).

For such acts, the employer may be held administratively liable under Article 5.27 of the Code of Administrative Offenses of the Russian Federation. Violation of labor legislation entails the imposition of an administrative fine:

for officials and entrepreneurs-employers - in the amount of 1,000 to 5,000 rubles;

for legal entities - from 30,000 to 50,000 rubles.

Arising Obligations

The average salary accrued to an employee during the period of study leave is recognized as income received from sources in the Russian Federation. Therefore, on a general basis, it is included in the taxable base when calculating the tax on the income of individuals (clause 1, article 209, clause 1, article 210 of the Tax Code of the Russian Federation).

This value is the object of taxation of insurance premiums for compulsory pension and medical insurance, as well as for compulsory social insurance in case of temporary disability and in connection with motherhood (clause 1, article 7 of the Federal Law of July 24, 2009 N 212-FZ "On insurance premiums to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund") and compulsory social insurance against industrial accidents and occupational diseases (clause 1, article 20.1 of the Federal Law of July 24, 1998 N 125-FZ "On compulsory social insurance against accidents at work and occupational diseases).

The amount of compensation for paying the employee’s travel to and from the place of study as a compensation payment established by the legislation of the Russian Federation is recognized as income not subject to personal income tax (clause 3 of article 217 of the Tax Code of the Russian Federation) and insurance premiums (subparagraph 2 of clause 1 of article 9 of Law N 212-FZ, subparagraph 2, paragraph 1, article 20.2 of Law No. 125-FZ).

The average earnings retained by the employee during the study leave are recognized as labor costs (clause 13, article 255 of the Tax Code of the Russian Federation) and are included in expenses taken into account when calculating income tax. The amount of compensation payments for travel to and from the place of study is also recognized as labor costs.

If the collective agreement provides for the provision of additional days of study leave in comparison with the established legislation, or if payment is made in amounts exceeding the average salary retained by the employee, then the amount of excess over the amounts calculated in accordance with the current legislation is not taken into account in expenses. that reduce the income received (clause 24, article 270 of the Tax Code of the Russian Federation).

When using the accrual method in tax accounting, labor costs are taken into account on a monthly basis, based on the amounts calculated in accordance with Article 255 of the Tax Code of the Russian Federation (clause 4 of Article 272 of the Tax Code of the Russian Federation). It is possible that the period of study leave falls on two reporting (tax) periods. The Ministry of Finance of Russia, considering such a case with annual paid leave, strongly recommends that the amount of accrued vacation pay be included in expenses in proportion to the days of vacation falling on each reporting period (letters of the Ministry of Finance of Russia dated 23.07.12 N 03-03-06 / 1/356, dated 23.12 .10 N 03-03-06/1/804).

From vacation pay, the tax agent withheld personal income tax in the amount of 3295 rubles. (25,346.25 rubles x 13%) and transferred it to the account of the Federal Treasury on June 4. At the same time, 22,051.25 rubles were sent to the employee's card account. (25 346.25 - 3295).

When determining the wage fund for the organization for June, it included vacation pay of 25,346.25 rubles. and the remuneration accrued to the employee for five days worked - 5657.89 rubles. (21,500 rubles / 19 days x 5 days).

These amounts were taken into account when forming the taxable base for insurance premiums to state off-budget funds and for injuries in June of this year.

Following the insistent wishes of the financiers, the organization divided the vacation pay of 25,346.25 rubles. in proportion to the number of study leave days falling in June (22 days) and July (3 days) - 22,304.70 rubles. (1013.85 rubles / day x 22 days) and 3041.55 rubles. (1013.85 rubles / day x 3 days), respectively.

The taxpayer included the first amount in labor costs when calculating income tax for the first half of 2014, while the second was taken into account by him when forming the taxable base for income tax for nine months of the current year.

However, judges do not always agree with such a proposal. Thus, the judges of the Federal Antimonopoly Service of the West Siberian District, taking into account the provisions of Article 136 of the Labor Code of the Russian Federation, in accordance with which vacation pay is made no later than three days before its start, considered it lawful to include vacation pay accrued by the taxpayer for the period falling on two tax periods following each other. after another, into expenses for taxation purposes in the first tax period (Decree of the Federal Antimonopoly Service of the West Siberian District of December 26, 2011 N A27-6004 / 2011).

The Federal Antimonopoly Service of the Moscow District, in its resolution of 24.06.09 N KA-A40 / 4219-09, indicated that expenses accrued in December of the reporting year for vacation falling in January-February of the next year should be recognized as expenses of the reporting year in full, without dividing into parts.

For some, the coming winter is a harbinger of the upcoming New Year holidays, and for many students it is a reminder of the winter session.

And if so, then the accountant will not be left without work - employees go on study holidays and they need to be properly drawn up and calculated.

Guarantees and compensations for employees who combine work with training are provided for by Chapter 26 of the Labor Code of the Russian Federation.

Such guarantees and compensations include:

• provision of additional paid leave and leave without pay,
• payment for travel to the place of study,
• shortening the working day or working week.

According to the provisions of Article 287 of the Labor Code of the Russian Federation, guarantees and compensations to persons combining work with education are provided to employees only at the main place of work.

What kind of compensation and guarantees to provide to an employee who combines work with education depends not only on the type of education received:

• average general,
• primary vocational,
• secondary vocational,
• higher professional,
• professional development after graduation,

but also from the form of education - full-time, part-time, evening.

At the same time, it should be taken into account that mandatory guarantees and compensations are provided only to those employees who combine work with education in educational institutions that have state accreditation in accordance with the legislation of the Russian Federation.

The presence of state accreditation is confirmed by a call certificate. It should indicate:

• registration number,
• date of issue,
• full name of the body that issued the certificate of state accreditation.

Guarantees and compensations for employees who combine work with higher education in educational institutions, not having state accreditation, are established:

• collective agreement,
• or an employment contract.

This article will discuss the conditions under which such guarantees are provided, as well as the procedure for registration and calculation of study holidays.

Guarantees provided for by the provisions of the Labor Code of the Russian Federation

Guarantees and compensations for employees receiving higher education* are provided in accordance with the provisions of Article 173 of the Labor Code of the Russian Federation.

Employees studying in higher education institutions oncorrespondence And part-time (evening) forms of training, the company must provide additional holidays:

• for 1 and 2 courses, respectively - 40 calendar days each,
• on each of the subsequent courses, respectively - 50 calendar days (when studying as an external student, on the 2nd course - 50 calendar days);

• up to 4 months in accordance with the curriculum.

The employer must provide leave without pay:

• Employees admitted to the entrance exams:
• 15 calendar days.

• Employees - students of the preparatory departments of educational organizations of higher education for the final certification:
• 15 calendar days;

• Employees studying in higher educational institutions full-time form of education that combines education with work:

• To pass the intermediate certification:
• 15 calendar days in an academic year.

• To prepare and defend the final qualifying work and pass the final state exams:
• 4 months.

• To pass the final state exams:
• 1 month.

Employees who successfully complete higher education by correspondence form of study, 1 time per academic year employer pays the fare to the location of the educational institution and back.

Employees who successfully graduate education by correspondence and part-time (evening) forms of education for a period of up to 10 academic months before the start of the state final certification:

• at their request, a working week is set, reduced by 7 hours.

During the period of release from work, the specified employees are paid 50% of the average earnings at their main place of work, but not below the minimum wage.

By agreement of the parties to the employment contract, the reduction of working time is carried out by providing the employee with one day off from work per week or by reducing the length of the working day during the week.

In accordance with the provisions of Article 173.1 (this article was introduced by the Federal Law of July 2, 2013 No. 185-FZ), employees mastering the programs:

• training of scientific and pedagogical staff in graduate school (adjuncture),
• residency,
• internship assistants,

by correspondence form of education are entitled to:

• Annual additional leave at the place of work lasting 30 calendar days with the preservation of average earnings.

At the same time, the time spent on travel from the place of work to the place of training and back is added to the annual additional leave of the employee, while maintaining the average earnings. The specified travel is paid by the employer.

• One free day from work per week with payment in the amount of 50% of the salary received.

Employer entitled to provide employees, at their request, in the last year of study with additional no more than two days off from work week without pay.

In addition, the above employees, as well as employees who are applicants for a PhD degree, also have the right to:

• to provide them at the place of work additional annual leave duration 3 months to complete a dissertation for the degree of candidate of sciences while maintaining average earnings.

Guarantees and compensations for employees receiving secondary vocational education* are provided for in Article 174 of the Labor Code of the Russian Federation.

*In educational institutions with state accreditation.

Employees successfully mastering secondary vocational education part-time and part-time (evening) forms of training, the employer provides additional leave maintaining average earnings:

• To pass the intermediate certification:
• on 1 and 2 courses for 30 calendar days,
• on each of the subsequent courses - 40 calendar days.

• To pass the state final certification:
• up to 2 months (according to the curriculum).

Note:FROM September 01, 2013 the norm of Article 174 of the Labor Code of the Russian Federation, according to which employees were granted leave with the preservation of average earnings for passing the final state exams for one month, became invalid (Federal Law of 02.07.2013 No. 185-FZ).

Without pay, it is mandatory to provide leave to employees:

• Admitted to entrance examinations:
• 10 calendar days

• Combining secondary vocational education full-time form of training with work:
• for passing intermediate certification - 10 calendar days per academic year,
• for passing the state final certification - up to 2 months.

Employees receiving secondary vocational education by correspondence form of education 1 time per academic year employer:

• pays for travel to the location of the educational organization and back in the amount of 50% fare.

Employees receiving secondary vocational education part-time (evening) and part-time forms of education:

• Within 10 academic months before the start of the state final certification, the at their request work week shortened by 7 hours.

By agreement of the parties to the employment contract, concluded in writing, the reduction of working time is carried out by:

• providing an employee with 1 day off from work per week,
• or reducing the length of the working day (shift) during the week.

Note:From 01 September 2013 invalidated Article 175 of the Labor Code of the Russian Federation, in accordance with which employees who successfully study at state-accredited educational institutions of primary vocational education, regardless of their organizational and legal forms, were provided with additional leave while maintaining their average earnings for passing exams for 30 calendar days within one year (Federal Law of 02.07. 2013 No. 185-FZ).

In accordance with the provisions of Article 176 of the Labor Code of the Russian Federation, employees who successfully study under the programs of basic general or secondary general education * part-time (evening) form of education, additional leave while maintaining average earnings d To pass the state final certification:

• according to the educational program main general education for a period of 9 calendar days,
• according to the educational program middle general education for a period of 22 calendar days.

*In educational institutions with state accreditation.

For such employees during the academic year, at their request working week shortened:

• for 1 working day,
• or for the number of working hours corresponding to it (with a reduction in the working day / shift during the week).

During the period of release from work, these employees are paid 50% of the average earnings at their main place of work, but not lower than the minimum wage.

The procedure for providing guarantees and compensations to employees who combine work with education is regulated by the provisions of Article 177 of the Labor Code of the Russian Federation.

Guarantees and compensations for employees who combine work with education are provided upon receipt of education of the appropriate level for the first time.

The specified guarantees and compensations are also may be provided to employees who already have a vocational education of the appropriate level and are sent to receive education employer in accordance with the provisions:

• employment contract,
• or student agreement

concluded between the employee and the employer in writing.

Accordingly, the above guarantees and compensations do not apply to employees who receive 2nd higher education on their own initiative.

According to paragraph 8 of Article 69 of the Federal Law of December 29, 2012 No. 273-FZ “On Education in the Russian Federation”, education at the expense of the budgetary allocations of the federal budget, the budgets of the constituent entities of the Russian Federation and local budgets is getting a second or subsequent higher education in the following educational programs of higher education:

• For bachelor's or specialist's programs - by persons who have a bachelor's degree, a specialist's degree or a master's degree.

• For master's programs - by persons with a specialist diploma or a master's degree.

• For residency programs or assistantship-internship programs - by persons who have a diploma of completion of a residency or a diploma of completion of an assistantship-internship.

• According to the training programs for scientific and pedagogical personnel - by persons who have a postgraduate diploma (adjuncture) or a candidate of science diploma.

At the same time, in accordance with paragraph 5 of Article 68 of Law No. 272-FZ, obtaining secondary vocational education in training programs for mid-level specialists for the first time by persons who have a diploma of secondary vocational education with the qualification of a qualified worker or employee:

• is not getting a second or subsequent secondary vocational education again.

To additional holidays provided for in Articles 173 - 176 of the Labor Code of the Russian Federation, by agreement between employer and employeemay join annual paid holidays.

An employee who combines work with education at the same time in two organizations engaged in educational activities, guarantees and compensations are provided only in connection with education in one of these organizations (at the choice of the employee).

Forms of a certificate-call giving the right to provide guarantees and compensations to employees are approved:

• Order of the Ministry of Education of the Russian Federation of May 13, 2003 No. No. 2057 (for higher educational institutions).
• Order of the Ministry of Education of the Russian Federation of December 17, 2002 No. No. 4426 (for secondary specialized educational institutions).

The procedure for registration and calculation of study holidays

To receive study leave, an employee must write an application and attach to it a certificate-call from an educational institution.

Based on these documents, the company issues an order to grant study leave to the employee.

After the session ends, the employee must submit a confirmation certificate. This is a detachable part of the certificate-call, confirming that the employee was really at the session on the specified dates.

In the case when study leave is provided with pay, it is necessary to fill out a Note-calculation on the provision of leave and calculate vacation pay.

We remind you that in accordance with the provisions of paragraph 4 of Article 136 of the Labor Code of the Russian Federation, vacation payment is made no later than 3 days before it starts. These requirements apply not only to regular vacations, but also to paid training.

It must be remembered that study leave, unlike the annual basic paid leave, is not an employee's rest time. Accordingly, the replacement of study leave with monetary compensation is not allowed.

According to the provisions of Article 139 of the Labor Code of the Russian Federation, the average daily earnings for vacation pay are calculated for the last 12 calendar months by dividing the amount of accrued wages by 12 and by 29.4 (average monthly number of calendar days).

Calculation of average earnings for payment of study leave is carried out in accordance with the Decree of the Government of the Russian Federation of December 24, 2007 No. No. 922 "On the peculiarities of the procedure for calculating the average wage."

In accordance with clause 14 of Decree No. 922, when determining the average earnings for paying for additional study holidays, payment is subject to all calendar days(including non-working holidays) falling on the period of such holidays provided in accordance with the certificate-call of the educational institution.

According to paragraph 8 of the Decree of the Government of the Russian Federation of 18.01.1992. No. 33 "On additional measures for the social protection of student youth", employees studying evening and part-time forms of education in higher and secondary specialized educational institutions, the average earnings to pay for additional vacations related to education are calculated in the manner prescribed for annual holidays.

That is, study holidays are calculated in the same way as annual paid holidays according to the following formula:

Formula for determining average earnings when calculating vacation pay

1. The previous 12 months have been fully worked out by the employee. “Vacation day price” will be = The amount of payments taken into account to calculate the average earnings for 12 months / 12 * 29.4.

2. The previous 12 months have not been fully worked out by the employee. "Price of the day" will be = The amount of payments taken into account to calculate the average earnings /( X*29,4 + At*29,4/FROM).

Where: X - the number of months worked in full. At - number spent calendar days in the month (months) worked (worked out) not completely. FROM - the total number of calendar days in the month (months) for each month (months) not fully worked.

You can read more about the procedure for calculating vacations in the article.

An employee who combines work with education must be granted student or study leave. In some cases, study holidays are paid based on the average earnings of the employee, in others they are not paid at all.

The basic rules for granting student leave are spelled out in the Labor Code,. But in addition to the Labor Code of the Russian Federation, there are other legislative acts on the basis of which an employee has the right to go on vacation in connection with training.

Conditions for granting study leave

Study leave must be granted to an employee if:

• he receives an education of the appropriate level for the first time (Article 177 of the Labor Code of the Russian Federation);
• he is studying according to an educational program that has state accreditation (Articles 173-176 of the Labor Code of the Russian Federation);
• he provided the employer with a certificate of summons in the prescribed form (approved by Order of the Ministry of Education and Science of Russia dated December 19, 2013 N 1368). Such a certificate is issued by the educational organization where the employee is studying (Article 177 of the Labor Code of the Russian Federation);
• an employer organization is the main place of work for a student employee (Article 287 of the Labor Code of the Russian Federation).

Educational programs can be:

• higher professional education - bachelor's degree, specialist's degree, master's degree, postgraduate study, residency, assistantship-internship (Article 173 of the Labor Code of the Russian Federation);
• secondary vocational education - training in technical schools, colleges, professional lyceums, etc. (Article 174 of the Labor Code of the Russian Federation);
• basic general or secondary education - education in schools, gymnasiums, etc. (Article 176 of the Labor Code of the Russian Federation).

In view of the foregoing, if your employee receives a second higher education, including in connection with production needs, and / or studies under a program that does not have state accreditation, you can provide and pay him leave only if it is provided for by an employment contract with him or your collective agreement.

At the same time, if your employee manages to study at two educational institutions at once (and even works), then he can be granted study leave only in relation to one of these institutions at the choice of the employee (Article 177 of the Labor Code of the Russian Federation).

By the way, by agreement with the employer, an additional study leave of an employee can be added to the annual basic paid leave (Article 177 of the Labor Code of the Russian Federation). But the employee is not entitled to demand their unification.

Student leave: how is it paid

Before moving on to the question of how student leave is paid in 2020, let's figure out which study leaves are paid and which are not. Moreover, paid leave for a session under the Labor Code can be of different duration. All this, of course, must be taken into account before proceeding with the payment of vacation.

Paid student leave under the Labor Code.

Type of education	Form of study
	Correspondence, part-time	Intermediate certification (Article 173 of the Labor Code of the Russian Federation): - on the 1st, 2nd year - 40 calendar days in the academic year (when mastering the program in a shortened time - 50 calendar days on the 2nd year); - on each subsequent course - 50 calendar days per academic year. State final certification - within 4 months in accordance with the curriculum of the educational program
Secondary vocational	Correspondence, part-time	Intermediate certification (Article 174 of the Labor Code of the Russian Federation): - on the 1st, 2nd year - 30 calendar days per academic year; - on each subsequent course - 40 calendar days per academic year. State final certification - within 2 months in accordance with the curriculum of the educational program
Basic general or secondary general	Part-time	State final certification for the educational program (Article 176 of the Labor Code of the Russian Federation): - basic general education - 9 calendar days; – secondary general education - 22 calendar days
Higher professional - postgraduate (postgraduate, adjuncture, residency, assistantship-internship)	Correspondence	During the calendar year - 30 calendar days, as well as the days spent on travel to the location of the educational organization and back. That is, the employee, based on average earnings, is paid for both the vacation period and days on the road (Article 173.1 of the Labor Code of the Russian Federation). Preparation for the defense of a dissertation for a degree: — candidate of sciences - 3 months; - Doctor of Science - 6 months (Article 173.1 of the Labor Code of the Russian Federation, clause 2 of the Rules, approved by Decree of the Government of the Russian Federation of 05.05.2014 N 409). Vacation is granted if there is a security clearance

Unpaid student leave under the Labor Code in addition to paid.

Type of education	Form of study	The purpose of the leave and its duration
Higher professional (bachelor's, specialist's, master's)	full-time	Intermediate certification - 15 calendar days in the academic year. Passing the final state exams - 1 month; Passing the final state exams along with the preparation and defense of the final qualifying work - 4 months (Article 173 of the Labor Code of the Russian Federation)
Secondary vocational	full-time	Intermediate attestation - 10 calendar days per academic year. State final certification - within 2 months (Article 174 of the Labor Code of the Russian Federation)
Higher professional (bachelor's, specialist's, master's)	Any	Passing entrance examinations - 15 calendar days. Final certification for students of preparatory departments of universities - 15 calendar days (Article 173 of the Labor Code of the Russian Federation)
Secondary vocational	Any	Passing entrance examinations - 10 calendar days (Article 174 of the Labor Code of the Russian Federation)

Now directly about the calculation of vacation pay. Each day of an employee's paid study leave must be paid based on the employee's average earnings, which is determined according to the same rules as in the calculation (Art. 139, 173-176 of the Labor Code of the Russian Federation). But in the case of student leave, all calendar days included in it, including weekends and non-working holidays, are payable (clause 14 of the Regulation, approved by Decree of the Government of the Russian Federation of December 24, 2007 N 922).

The average earnings accrued for the days of study leave must be paid to the employee within the standard period for transferring vacation payments - no later than 3 calendar days before the start of the vacation (Article 136 of the Labor Code of the Russian Federation, Letter of Rostrud dated 07.30.2014 N 1693-6- one).

Application for student leave

As mentioned above, in order to provide educational leave for almost any of the “student” grounds, the employee must provide the employer with a call certificate from the educational organization. In some cases, other documents may be used to justify the need for study leave. For example, if your employee is going to defend a dissertation and receive a Ph.D. or Ph.D. In this case, he will provide you with an extract from the decision of the dissertation council (clause 5 of the Rules, approved by Decree of the Government of the Russian Federation of 05.05.2014 N 409).

But regardless of the certificate-call (extract from the decision of the council), the employee must also write an application for leave. If the application indicates the same number of vacation days as in the call certificate, or less, the employee must be granted leave in accordance with the application.

If it so happens that for the academic year, in accordance with the call certificates, you will have to provide the employee with additional leave in total for a longer period than provided for by the Labor Code of the Russian Federation, then he will need to pay vacation days in accordance with the restriction under the Labor Code, and the remaining days go on unpaid leave.

Study leave of an employee in personnel documents

Granting additional study leave to an employee, of course, requires certain documentation.

Order. As in the case of annual paid holidays, it is necessary to issue an order in the form N T-6 (). In it, in section "B", indicate that the employee was granted additional leave with the preservation of average earnings, the dates of its beginning and end, the duration in calendar days, the number of paid vacation days.

Time sheet. Vacation days in the form of N T-12 or N T-13 (approved by the Decree of the State Statistics Committee of the Russian Federation of 01/05/2004 N 1) must be indicated by the following codes:

• if leave is provided with the preservation of average earnings, then the letter code "U" or the numeric code "11" is used;
• if leave without saving average earnings - the letter code "UD" or the numeric code "13".

Employee's personal card. It makes a note about the additional leave of the employee in section VIII.

Other guarantees for workers combining work and study

Once a year, the employer must pay for travel to and from the location of the educational institution for employees who successfully study part-time in the organization:

• or higher professional education - in the amount of 100% of the fare (Article 173, Article 173.1 of the Labor Code of the Russian Federation);
• or secondary vocational education - in the amount of 50% of the fare (Article 174 of the Labor Code of the Russian Federation).

In addition, employees who combine work and study may have their working hours reduced. The reduction rules depend on the level of education received, the form of education, etc. (Art. 173-176 of the Labor Code of the Russian Federation).

Features of study holidays

Additional study holidays have their own characteristics that employers should not forget about. Let's list some of them.

Feature 1. If an employee falls ill during study leave, the leave is not extended. Since it is provided for very specific purposes and for the period specified in the call certificate. Accordingly, for the days of temporary incapacity for work falling on vacation, the allowance is not paid (clause 1, part 1, article 9 of the Law of December 29, 2006 N 255-FZ, clause “a”, clause 17 of the Regulation, approved by the Decree of the Government of the Russian Federation of 06/15/2007 N 375). If the employee continues to get sick even after he has to go to work (at the end of the study leave), then from the day following the last day of vacation, he should be credited with an allowance (Article 183 of the Labor Code of the Russian Federation, Part 2 of Article 5 , part 1, article 13 of the Law of December 29, 2006 N 255-FZ).

Feature 2. Educational leave cannot be reduced due to operational needs, i.e. the employer is not entitled to provide the employee with a vacation of a shorter duration than indicated in the call certificate. An exception is an employee, on his own initiative, writes an application for a vacation for a shorter period.

Similarly, an employer does not have the right to refuse to grant an employee a study leave if there is a certificate-call from an educational institution.

Feature 3. An employee cannot be recalled from study leave (Article 125 of the Labor Code of the Russian Federation). Otherwise, this would lead to a change in the duration of the vacation.

Feature 4. Study leave cannot be replaced by monetary compensation. Such a replacement would be contrary to the purpose of the leave.