If an employee is studying, then at his request, the employer is obliged to provide him study leave. However, do not rush to pay. Perhaps the employee is entitled to only unpaid leave.

Many companies have employees who combine work with training. In accordance with the law, these employees are entitled to study leave. You will not find the term "study leave" in the Labor Code. It deals with additional holidays with the preservation of average earnings and holidays without saving wages for employees who combine work with education, and employees entering training. However, it is common to call study leave all those holidays that are provided to employees for various purposes related to education. Such holidays are established by Chapter 26 of the Labor Code.

So, study leave can be:

Paid (additional leave with the preservation of average earnings);

Unpaid (vacation without pay).

Who is eligible for study leave?

According to the provisions of the Labor Code (Articles 173-176 of the Labor Code of the Russian Federation), study holidays are granted to those employees who receive a certain level of education. The right to paid study leave arises under the following conditions:

The employee learns successfully;

The educational institution has state accreditation;

This is the first time a worker has received such a level of education.

Let us consider separately each of these conditions, as well as the difficulties that arise in their implementation.

Studying successfully. Labor Code does not disclose the content of the concept of "successful mastering of the educational program". Usually, speaking about the success of training, they mean the absence of debts in subjects or "failures" in the grade book. In any case, the implementation of current monitoring of students' progress is within the competence of the educational institution. Therefore, the success of training is confirmed by a certificate-call, and the requirement to provide a record book or other documents on academic performance on the part of the employer is unlawful.

State accreditation. Of course, employees who combine work with education in educational programs that have state accreditation have the right to study leave.

But there is an exception. Educational leave (paid or unpaid) can also be granted to those who study in educational institutions that do not have state accreditation. To do this, this condition must be spelled out in an employment or collective agreement (Articles 173, 174 of the Labor Code of the Russian Federation). If the employer sent the employee to such training with a break from work, the employee is provided with guarantees and compensations provided for by the Labor Code (Article 187 of the Labor Code of the Russian Federation).

Requirement to receive education for the first time. If an employee is studying at a technical school, college or institute for the first time, then there are no questions. But there are cases, although at first glance not so obvious, when the education received is also considered the first.

For example, if an employee has previously received an education of the appropriate level, but did not complete the training, that is, did not receive a diploma, then the education he is currently receiving at the same level for the purpose of granting study leave is considered the first.

Another option: if the employee received a higher education immediately after graduation, then training in secondary educational programs vocational education is considered to have obtained an appropriate level of education for the first time.

Also, if an employee who has a diploma of secondary vocational education with the qualification of a skilled worker (employee) studies under the training programs for mid-level specialists, then this is not a second or subsequent secondary vocational education.

Please note that studying at the magistracy of an employee with a bachelor's degree will not be a second higher education. Therefore, such an employee can take advantage of the guarantees provided for by labor legislation.

The only exception when study leave (both paid and unpaid) can be granted to an employee who already has a vocational education of the appropriate level is the direction for training by the employer in accordance with employment contract or a student agreement concluded in writing (Article 177 of the Labor Code of the Russian Federation).

H non-core training

If the specialty in which the employee is studying is non-core for the company, the employer does not have the right to refuse to grant study leave to the employee, since the Labor Code does not link the provision of study leave with the specialty that the student receives. If the employee is sent for training by the employer in a certain specialty, then the transition to another specialty is not possible.

E if a part-time student is studying

Part-time students are not granted study leave. The right to study leave arises only at the main place of work (Article 287 of the Labor Code of the Russian Federation). In relation to part-time work, such an employee, on the basis of his application, may be granted ordinary leave without pay (Article 128 of the Labor Code of the Russian Federation). If an employee studies simultaneously in two organizations engaged in educational activities, then leave is due in connection with training in only one of these organizations at the choice of the employee (Article 177 of the Labor Code of the Russian Federation).

To when study leave is paid

Employees who study part-time or in the evenings under state-accredited bachelor's, specialist's, master's, secondary vocational education programs are entitled to paid study holidays (Articles 173, 174 of the Labor Code of the Russian Federation). Paid study holidays are provided in calendar days.

The reason and duration of study leave depend on the type of education the employee receives (see table 1).

Table 1. Duration of paid study leave depending on the type of education

Type of education		Purpose of vacation	Duration of educational paid leave (Articles 173-176 of the Labor Code of the Russian Federation)
Higher (academy, university, institute)	Bachelor's, Specialist's, Master's. correspondence,		40 calendar days
			50 calendar days
		Mastering the program in a short time in the second year	50 calendar days
			Up to 4 months according to curriculum
	Postgraduate (adjuncture). Extramural studies	Education
			3 months
	Residency, assistantship - internship. Extramural studies	Education	Annually 30 calendar days + travel time from place of work to place of study and back
	Applicants for the degree of candidate of sciences	Completion of the dissertation for the degree of candidate of sciences	3 months
	Correspondence, part-time (evening) form of education	Intermediate certification (session) in the first and second years	30 calendar days
		Intermediate certification in the third and subsequent courses	40 calendar days
		Final certification (passing state exams, preparing and defending a diploma)	Up to 2 months according to curriculum
Basic general (evening school)	Part-time (evening) form of education	Final certification (final exams after grade IX)	9 calendar days
Secondary general (evening school)	Part-time (evening) form of education	Final certification (final exams after XI (XII) class)	22 calendar days

P study leave pay schedule

For the period of paid study leave, the employee retains the average earnings. It is calculated in the manner prescribed for the payment of vacations provided in calendar days. Average earnings are paid for all calendar days, including holidays, falling on the period of study leave provided in accordance with the call certificate. Study leave must be paid no later than three days before it starts (Article 136 of the Labor Code of the Russian Federation). Please note that crediting study leave after the end of the session and providing the employer with a confirmation certificate is illegal. For violation of the deadline for paying vacation pay, the employer bears financial responsibility (Article 236 of the Labor Code of the Russian Federation). It does not matter whether the employer is to blame for the delay in payment or not.

The consequences of not providing a confirmation certificate or presenting such a document in which violations are noted (in particular, failure to appear for exams) are not directly defined by labor legislation. Having identified the misuse of study leave, the employer may require the employee to voluntarily return vacation pay. At the same time, if the employee refuses to fulfill this requirement, it is impossible to deduct vacation pay from wages, since the Labor Code does not provide for such a basis for deduction (Article 137 of the Labor Code of the Russian Federation). The employer can apply to the court with a claim for the recovery of the overpaid amount, but given the lack of direct provisions in the law, it is problematic to predict the outcome of the trial.

Do not forget that the provision of guarantees and compensations to employees who combine work with training is the obligation of the employer, and not the right. Therefore, in case of non-fulfilment, the employee can apply to the state labor inspectorate, which, in turn, can present mandatory instructions to violators of labor rights to eliminate violations of labor legislation (Article 357 of the Labor Code of the Russian Federation). In addition, the inspection has the right to bring the perpetrators to administrative responsibility (Article 5.27 of the Code of Administrative Offenses of the Russian Federation).

When study leave is not paid

In addition to paid leave, a student employee has the right to additionally take study leave at his own expense. Study leave without saving average earnings is also provided in calendar days. The duration of such holidays depends on their purpose and level of education (see table 2).

Table 2. Duration of unpaid study leave depending on the type of education

Type of education	Purpose of vacation	Length of unpaid study leave
Higher (bachelor's degree, specialist's degree, master's degree)	Entrance tests (exams)	15 calendar days
	Final certification (exams) at the preparatory department	15 calendar days
	Intermediate certification (session) at the full-time department (full-time education)	15 calendar days per academic year
	Graduation preparation and defense qualifying work, passing state exams (full-time education)	4 months
	Passing state exams (full-time education)	1 month
Secondary professional (technical school, college)	Entrance examinations (correspondence, part-time and full-time forms)	10 calendar days
	Intermediate certification (full-time education)	10 calendar days per academic year
	Final certification (full-time education)	Up to 2 months

The law establishes not only the conditions for granting study holidays, but also their guaranteed duration. If the employment contract with the employee specifies a smaller number of days of study leave or includes a condition that the employee refuses to use study leave or pay for it, then this condition of the employment contract will not apply (part 2 of article 9 of the Labor Code of the Russian Federation).

Conversely, it is not forbidden to improve the position of workers in comparison with labor legislation. Therefore, in a collective agreement or in an employment contract, it is possible to provide for additional cases of granting study holidays, increasing their duration or granting leave with pay instead of leave without pay (Articles 9, 41, 57 of the Labor Code of the Russian Federation).

At the same time, it should be noted that the provision of study leave is one of the guarantees for employees who combine work with study. That is, the employee can use this guarantee in full or refuse it or use it partially. To do this, in addition to the certificate-call, the employee must submit an application indicating from what date and for how long he asks to be granted study leave. The dates of the requested study leave must not exceed the period specified in the call certificate. Then wages should be paid for the time worked, and average earnings for the actually used vacation days. The fact that the partial provision of study leave within the period specified in the call certificate does not contradict labor legislation is also confirmed by judicial practice (determinations of the Trans-Baikal Regional Court of March 21, 2012 No. 33-835 / 2012, Vologda Regional Court of September 28, 2011 No. 33-4454/2011). Although Rostrud has a different point of view on this issue (letter of Rostrud dated September 12, 2013 No. 697-6-1). Granting a study leave of a shorter duration than that specified in the call certificate, even if the employee requests it, will not fully comply with the requirements of the current legislation, since the study leave has a strictly designated purpose and should be used only in deadlines.

D Documents for registration of study leave

The basis for granting study leave is a call certificate (Article 177 of the Labor Code of the Russian Federation). Two forms of certificate-call are approved: for those receiving higher education (order of the Ministry of Education of Russia dated 13.05.2003 No. 2057) and secondary vocational education (order of the Ministry of Education of Russia dated 12.17.2002 No. 4426). Help-call for higher educational institution will also differ depending on what kind of vacation is provided - paid or not.

For other cases of granting educational leave, the call-inquiry forms are not approved. There is also no approved certificate form for a program that does not have state accreditation. But if the employee is granted study leave in accordance with a collective or employment agreement, such a certificate is issued in an arbitrary form. The only requirement for such a certificate is that it must reflect the purpose and timing of the study leave.

The employee is not required to bring a copy of the state accreditation certificate. This information is contained in the help call.

The second part of the certificate is filled in by the educational institution and certified with a seal after the study leave. It is a confirmation that the employee used the study leave for its intended purpose, namely: he really was in the educational institution that issued him the specified call certificate. The employer gives this part to the employee upon receipt of a certificate-call from him before the vacation, and the employee returns it when he returns to work from study leave.

If the employee provides only a certificate-call, then he needs to issue a study leave in accordance with it. The employer does not have the right to independently change the dates of the study leave.

Opinion

Boris Chizhov, Deputy Head of the Records Management Department of the Administration of the Federal Service for Labor and Employment, State Counselor of the Russian Federation, 2nd class

If the employee did not submit a certificate of challenge

A call certificate is issued by an educational institution to an employee before the start of the study leave. It consists of two parts: directly help-call and help-confirmation. The employee gives the organization a document with the completed first part. It serves as the basis for granting study leave to an employee and accruing vacation pay to him.

If the employee has not submitted such a certificate, then the employer has no reason to grant him study leave. At the same time, failure to appear at work can serve as a basis for considering the issue of absenteeism of an employee with the ensuing consequences.

Note that walking refers to disciplinary offenses for which the employer, on the basis of the explanations provided by the absent employee, has the right to apply different types disciplinary sanctions (Article 192 of the Labor Code of the Russian Federation) - remark, reprimand, dismissal.

If an employee made absenteeism and was punished, then he does not lose the right to use the next study leave upon presentation of a call certificate in the prescribed manner.

STUDY LEAVE: PROCEDURE FOR PROVIDING,

DESIGNS AND TAX ACCOUNTING

Often in organizations, individual employees combine work with study in educational institutions. The spring semester is coming to an end, and the next exam session is coming soon. In accordance with the law, these employees are entitled to study leave. Consider the features of their provision, documentation and payment, and how an accountant can avoid additional problems.

Guarantees and compensation for employees who combine work with training are provided for in Art. Art. 173 - 177 of the Labor Code of the Russian Federation, as well as Art. 17 of the Federal Law of August 22, 1996 N 125-FZ "On Higher and Postgraduate Vocational Education". In particular, such guarantees include the right of these employees to additional (training) leave. Study holidays can be divided into two types. Firstly, these are holidays granted for admission to educational institutions, that is, for passing entrance exams to institutions of higher and secondary vocational education, as well as for passing final exams at the end of the preparatory departments of higher educational institutions, if they were students of these departments. And secondly, educational leave that employees can get while studying in institutions of higher and secondary vocational education (for passing intermediate certification, passing final exams, etc.), as well as in evening (shift) schools and institutions of primary vocational education.

According to Art. 173 of the Labor Code, employees sent for training by the employer themselves, as well as those who entered (enter) an educational institution on their own initiative, have the right to study holidays. In addition, the employer is obliged to provide these vacations regardless of whether the employee’s training is related to his job duties, whether he began to study before or after hiring, and whether or not the employee is on a probationary period.

It should be noted that employees are entitled to study holidays for all forms of education: full-time, evening and part-time.

Conditions for granting study leave

According to Art. 11 of the Labor Code of the Russian Federation, study holidays are required to be provided by all employers, regardless of ownership and types of activity. At the same time, despite the right of the employee to study leave, these holidays are granted provided that the requirements established by Art. Art. 173 - 177 of the Labor Code of the Russian Federation. So, a study leave can be issued by an employee who studies full-time, part-time or part-time (evening / shift) forms of education at an educational institution that has state accreditation. If the educational institution does not have state accreditation, leave is granted to the employee only if the collective or labor agreement reflects the condition for granting educational leave, regardless of whether the educational institution has the above document.

In addition, study leave is only available to an employee receiving primary, secondary or higher vocational education for the first time. This restriction does not apply to employees who already have a vocational education of the appropriate level and are sent for training by the employer on the basis of an employment contract or a training agreement concluded in writing. If the named documents are available, the employee has the right to issue a study leave, despite the fact that the education received is not the first for him.

Note. In addition to study leave, an employee who combines work with education has the right to claim other guarantees and compensations provided for by the Labor Code. These include, in particular, the right to a reduced working week (by 7 hours) with the payment of 50% of the average salary for the time of release, but not lower than the minimum wage, to pay for travel to and from the place of study, etc.

Example 1 An employee of Kristall LLC N.A. Mikhailov is on probation. He is studying part-time in his second year of high school. In May 2011, the employee submitted to the organization all Required documents for study leave. The employer does not have the right to refuse N.M. Mikhailov in granting study leave, citing the fact that he is on probation. Indeed, in this case, the norms of Art. 70 of the Labor Code of the Russian Federation, in accordance with which, during the probationary period, the employee is subject to the provisions of labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements and local regulations of the organization.

In addition, at granting study leave named employee of Kristall LLC must take into account the following:

- dismissal of an employee at the initiative of the employer (including as a person who has not passed the probationary period) during the period the employee is on vacation is not allowed (Article 81 of the Labor Code of the Russian Federation);

- periods when the employee was actually absent from work (Article 70 of the Labor Code of the Russian Federation) are not counted in the probationary period.

If an employee is studying at two educational institutions at the same time, study leave is granted at his choice only in connection with studying at one of these institutions. In addition, an employee has the right to study leave if work in the organization is his main place of work.

Note. Study leave is granted to internal and external part-time employees and is paid only at the main place of work.

Example 2 An employee of CJSC Morozko A.V. Novikov receives his first higher professional education in a higher educational institution that does not have state accreditation in accordance with the legislation of the Russian Federation.

The absence of accreditation from an educational institution, issued in accordance with the legislation of the Russian Federation, does not exclude the possibility for an employee to receive study leave. A.V. Novikov can receive study leave while studying at this institution, if the employment contract concluded with him indicates that study leave is granted on the condition that a document confirming the call of the employee to the session is presented from the educational institution.

Note! Responsibility of the organization for violation of the procedure for granting study leave

If, in accordance with labor law, an employee is entitled to paid study leave, the employer does not have the right (regardless of the reasons for such actions) to oblige the employee to take leave without pay. Otherwise, when an employee applies to the state labor inspectorate, the employer organization may be held administratively liable in the form of a fine in the amount of 30,000 to 50,000 rubles. or suspension of activities for up to 90 days. In addition, an administrative fine in the amount of 1,000 to 5,000 rubles may be imposed on the head of the organization. (part 1 of article 5.27 of the Code of Administrative Offenses of the Russian Federation).

In addition to administrative responsibility for the delay in paying holiday amounts, the organization also bears financial responsibility. According to Art. 236 of the Labor Code of the Russian Federation, simultaneously with the payment of vacation pay, she must pay the employee interest in the amount of not less than 1/300 of the refinancing rate of the Bank of Russia from unpaid amounts for each day of delay. Interest is calculated from the next day after due date payment of amounts due to the employee up to and including the day of actual settlement. In this case, the obligation to pay the specified interest arises from the employer, regardless of the presence of his fault.

The procedure for granting and documenting study leave

Educational holidays provided by the employer are divided into holidays with the preservation of average earnings and without pay. Holidays With while maintaining average earnings, the employer is obliged to provide during the entire training period to employees with part-time and part-time (evening) forms of education. Unpaid leave is issued to employees for passing entrance exams to various educational institutions, as well as for passing final exams at the end of the preparatory departments of universities. Also, unpaid leave during the period of study is provided to employees receiving full-time education.

To receive study leave (both paid and unpaid), the employee must submit two documents to the organization:

- a certificate-call of an educational institution;

- application for study leave.

Note. By order of the Ministry of Education of Russia, the form of a certificate-call is approved only for higher and secondary specialized educational institutions. Therefore, employees studying in educational institutions of primary vocational education submit these documents in accordance with forms independently developed by these institutions.

Help-call. This document from an educational institution is the basis for granting study leave, as well as other guarantees for employees who combine work with study. The form of the certificate-call depends on the status of the educational institution and the grounds on which it is issued. So, for example, an employee who studies at a higher educational institution and has the right to paid educational leave must submit a call certificate in the form that is given in Appendix No. 1 to Order of the Ministry of Education of Russia dated May 13, 2003 No. 2057. and having the right to leave without pay, must submit a certificate-call in the form given in Appendix No. 2 to the said Order. Employees entering and studying in secondary specialized educational institutions submit certificates-calls according to the forms approved by Order of the Ministry of Education of Russia dated December 17, 2002 N 4426.

A call certificate is issued by an educational institution to an employee before the start of the study leave. It consists of two parts: directly from the help-call and help-confirmation. The organization receives this document with the completed first part. In particular, it indicates the full name of the educational institution, information about state accreditation, the type of study leave (for passing entrance examinations, intermediate certification, passing final state exams, etc.), as well as the duration of the study leave.

Note: the duration of the study leave (both with the preservation of average earnings and unpaid), indicated in the certificate-call, should not exceed the period established by Art. Art. 173 - 176 of the Labor Code of the Russian Federation (Tables 1 and 2 on pp. 85 - 86).

Table 1. Length of study leave while maintaining average earnings

—Preparation and defense of the final qualifying work and passing the final state exams4 months2 months——Passing the final state exams (if the program of the educational institution does not provide for writing and defending the final qualifying (diploma) work after graduation)1 month1 month——Passing the exams——30 calendar days within one year—Passing final exams in grade IX———9 calendar daysPassing final exams in grade XI (XII)———22 calendar days

Table 2. Length of study leave without saving average earnings

The purpose of the leave, for which employees is provided	Type of education
	average	professional
Entrance examinations to educational institutions (regardless of the form of education) - for employees admitted to entrance examinations	15 calendar days	10 calendar days
Passing final exams (regardless of the form of education) - for employees - students of the preparatory departments of universities	15 calendar days	—
Employees studying in state-accredited educational institutions full-time, combining study with work: a) to pass an intermediate certification;

b) for the preparation and defense of the final qualifying work and passing the final state exams;

c) to pass the final state exams / final exams (if the program of the educational institution does not provide for the writing and defense of a qualifying (thesis) work upon graduation)

15 calendar days per academic year

10 calendar days per academic year

The first part of the help-call serves as the basis for granting study leave employee and accrual of vacation pay.

The second part of the certificate-call is filled in by the educational institution and certified with a seal after the study leave. It is a confirmation that the employee used the study leave for its intended purpose, namely: he really was in the educational institution that issued him the specified call certificate. The employer gives this part to the employee upon receipt of a certificate-call from him before the vacation, and the employee returns it when he returns to work from study leave. In the event that this document is not submitted at the request of the employer, the period of absence of the employee from work may be qualified as absenteeism with corresponding negative consequences.

Note. Absenteeism refers to disciplinary offenses for which the employer (based on the explanations provided by the absent employee) has the right to apply different types of disciplinary sanctions under Art. 192 of the Labor Code of the Russian Federation (remark, reprimand, dismissal). To apply disciplinary action, the employer must carry out a number of mandatory procedures established by Art. 193 of the Labor Code of the Russian Federation.

Application for study leave. Taking a study leave is a right, not an obligation, of an employee. Therefore, he may draw it up, or he may not draw it up. If an employee decides not to take study leave, the employer is not required to provide it. In addition, the employee has the right to take study leave not in full, but in part. For example, if the duration of the vacation is 15 calendar days specified in the call certificate, the employee can issue a study leave for 10 calendar days.

Since the employee has the right to partially use the study leave, in order to receive the study leave, in addition to the call certificate, he must submit a corresponding application to the employer. In the application, the employee indicates the type of vacation in accordance with the information specified in the call certificate, the dates of its start and end, as well as the duration in days.

Based on the above duly completed documents, the employer is obliged to provide the employee with study leave, as well as accrue and pay vacation pay. To do this, the employer:

- issues an order to grant study leave in the form N T-6<1>;

- calculates the amount of vacation pay for study leave (if the employee is entitled to paid study leave) by filling out a note-calculation on the provision of leave in the form N T-60<1>and pay vacation pay

- reflects information on the provision of study leave in sec. VIII "Vacation" of the employee's personal card in the form N T-2<1>;

- indicates the days of vacation in the time sheet in the form N T-12<1>or N T-13<1>by putting down the letter code "U" (for paid leave) or the letter code "UD" (for unpaid leave).

———————————

<1>These forms are approved by the Decree of the State Statistics Committee of Russia dated 05.01.2004 N 1.

Note. It is not necessary to require a copy of the certificate of state accreditation of an educational institution from an employee who has applied for a study leave, since all the necessary information (certificate number, date of issue, name of the authority that issued the certificate) is available in the call certificate.

The procedure for paying vacation pay

Vacation pay for employees for the period of study leave is calculated according to the general rules established by 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 N 922. To determine the amount of vacation pay, you need to divide the amount of wages accrued for the last 12 calendar months before going on vacation, divided by 12 and 29 ,4, and then multiply the result by the number of calendar days of vacation.

According to Art. 136 of the Labor Code of the Russian Federation, vacation pay must be paid to an employee no later than three days before it starts. At the same time, this article does not specify which days are meant - working days or calendar days. According to the author, the employer organization is obliged to issue study leave no later than three working days before the start of the vacation.

If the employee is a part-time worker (external or internal), study leave is granted to him and paid only at the main place of work (Article 287 of the Labor Code of the Russian Federation). With regard to part-time work, such an employee, on the basis of his application, may be granted ordinary leave without pay (Table 3).

Table 3. The procedure for granting study holidays to part-time workers

Note. In Art. 128 of the Labor Code says that for family reasons and other valid reasons, an employee may be granted leave without pay at his request. The duration of such leave is determined by agreement between the employee and the employer.

In accordance with Art. 173 of the Labor Code, employees who receive higher education in part-time and evening forms of study, in order to prepare and defend their final qualification work and pass final state exams, the organization is obliged to provide paid study leave for a period of four months. Vacation pay for such a vacation is carried out in accordance with the generally established procedure, namely: the entire amount of vacation pay is paid before the start of the vacation. The employer is not entitled to pay the specified vacation in installments (for example, monthly), since this is not provided for by labor legislation.

Study leave is targeted. This means that it must be used by the employee strictly for its intended purpose - to prepare for entrance examinations, pass intermediate or final certification, defend final work, passing state exams, etc. Therefore, if the employee decides not to take this leave, then simultaneously with the end of the period for which it must be provided, the employer's obligation to provide and pay for it ceases. Cash compensation for unused vacation the employer cannot pay, since such a right is not given to him by the Labor Code. Moreover, when paying the said compensation, the actions of the employer are regarded as a violation of labor legislation, in connection with which measures of administrative responsibility established by Art. 5.27 of the Code of Administrative Offenses of the Russian Federation.

Note. According to the norms of the Labor Code, monetary compensation for non-use of study leave is not paid. If the employer nevertheless pays such compensation, he will not be able to recognize such expenses for profit tax purposes.

Typical situations when granting study leave

As mentioned above, the duration of the study leave that the organization must provide to the student employee is determined on the basis of a call certificate. At the same time, this period is not mandatory for the employer if the employee has decided to use it partially or not to use it at all. In the first case, vacation pay is accrued based on the number of vacation days specified in the employee's application. In the second case, vacation pay is not accrued to him at all and is not paid.

Example 3 An employee of Avangard LLC N.A. Smirnova submitted to the organization a certificate-call from the university for paid study leave from April 1 to April 25, 2011 (25 days). In the application for study leave, she indicated the period from April 1 to April 20, 2011 (20 days). Such a statement is not a violation, since the employee has the right to use the vacation due at his own discretion - in full, in part or not at all.

In this case, the organization must accrue vacation pay N.A. Smirnova based on the period of vacation specified in the application. From April 21, this employee is required to return to work.

It often happens that the certificate-call indicates one period of study leave and, in accordance with this period, vacation pay is accrued to the employee, and another period (shorter) is indicated in the confirmation certificate. This is possible, for example, if the employee passed the exams ahead of schedule. In such a situation, the recalculation of the amount of vacation pay is not made and the vacation does not stop.

Note. Documents on payment for study holidays (applications, decisions, certificates, correspondence) must be kept until the end of the need for these documents, but not less than five years (clause 417 of the List of typical managerial archival documents generated in the course of the activities of state bodies, local governments and organizations , indicating the terms of their storage, approved by the Order of the Ministry of Culture of Russia dated August 25, 2010 N 588).

Example 4 CJSC Agat employee S.M. Ivanov studies in absentia at a higher educational institution. He was granted paid study leave within the period specified in the call certificate - from May 14 to June 5, 2011. S.M. Ivanov passed his tests and exams ahead of schedule, therefore, in the confirmation certificate submitted when he returned to work on June 6, 2011, other periods of study leave are indicated - from May 14 to May 31, 2011.

The fact of early delivery of the session or the defense of the diploma does not oblige the employee to interrupt the study leave and go to work. Recalculation of holiday amounts in such cases is not made. And the actions of the employee cannot be qualified as absenteeism.

If during study leave there are non-working holidays, then these days are taken into account and paid as days of study leave. On non-working holidays, study leave granted to an employee in connection with studying at an educational institution is not extended (Table 4).

Table 4. Influence of non-working holidays on the duration and payment of study and annual leave

Note. Study holidays are granted not for the working year (as annual), but for academic year. Therefore, the right to additional study-related leave does not depend on the length of service with the employer.

An employee cannot be on two holidays at the same time - on annual paid leave and on study leave. The fact is that these holidays have different purposes and are regulated by different norms of the Labor Code. Study leave is granted on the basis of the provisions of Sec. VII "Guarantees and compensations", and annual paid leave - in accordance with Sec. V "Time of rest". This means that if these holidays coincide in time, the employee is infringed in one of his rights - in the right to receive guarantees and compensations or in the right to rest. Given this, the annual paid leave is postponed to another time or, by agreement between the employer and the employee, is added to the study leave. The basis is Art. Art. 124 and 177 of the Labor Code of the Russian Federation.

Example 5 Cosmos LLC employee S.B. Potapov submitted to the organization a certificate-call from the university for study leave from June 1 to June 26, 2011. According to the approved vacation schedule, this employee is entitled to annual paid leave from June 20, 2011.

The employer does not have the right to oblige the employee to take annual paid leave from the specified date. This leave may be granted to S.B. Potapov from June 27 or at a later date.

During the study leave of an employee, there is a holiday - June 12. This day from among vacation days is not excluded, and study leave is not extended. Thus, Cosmos LLC must pay S.B. Potapov study leave for the period from 1 to 26 June 2011 (26 calendar days).

An employee who falls ill during study leave is not granted temporary disability benefits for sick days falling on vacation days and is not extended for these days. This follows from Art. 183 of the Labor Code of the Russian Federation, paras. 1 p. 1 art. 9 of the Federal Law of December 29, 2006 N 255-FZ, as well as paragraphs. “a”, paragraph 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 by Decree of the Government of the Russian Federation of 15.06. 2007 N 375. According to the specified norms, during the period of release from work, temporary disability benefits are not assigned (except for illness during annual leave).

Therefore, if an employee fell ill while on study leave, the employer must pay him sick leave only for the days of illness that fall on the period after the end of the study leave.

Example 6 Let's use the condition of Example 5. Suppose S.B. Potapov, while on study leave (from June 1 to 26), fell ill. Sick leave he was issued from 21 to 30 June 2011. The temporary disability benefit for this employee must be accrued and paid for the period from 27 to 30 June. During the period of illness falling on study leave, the employee is not entitled to benefits.

Calculation of taxes and insurance premiums from the amount of payment of educational vacation pay

income tax. Expenses for payment of study leave granted subject to the requirements of Art. Art. 173 - 177 of the Labor Code of the Russian Federation, are taken into account for the purposes of taxation of profits as part of labor costs. This is stated in paragraph 13 of Art. 255 of the Tax Code of the Russian Federation. If vacation days fall in different reporting periods, then when determining the tax base for income tax, the amount of accrued vacation pay is included in expenses in proportion to the vacation days falling on each reporting period (Letters of the Ministry of Finance of Russia dated 04.22.2010 N 03-03-06 / 1 /288 and dated April 13, 2010 N 03-03-06/1/255).

Note. If the requirements of Art. Art. 173 - 177 of the Labor Code of the Russian Federation, expenses for paying educational leave are not recognized when calculating income tax.

income tax and insurance premiums. The amounts of payment for study holidays are subject to personal income tax and insurance contributions to off-budget funds in the generally established manner. Since, according to paragraph 3 of Art. 217 of the Tax Code of the Russian Federation and Art. 9 of the Federal Law of July 24, 2009 N 212-FZ, these amounts are not included in the list of payments exempt from personal income tax and insurance premiums.

Many employees in organizations continue to receive education, already being officially employed. In this regard, specialists of the personnel service of an enterprise often face the question of whether an employee who is receiving education has the right to additional leave. If so, should it be paid for and in what situations is it provided? How is study leave paid?

There are really a lot of nuances in this matter, so each situation requires an individual approach. It is necessary to pay attention to a huge number of aspects, for example, the form of training of an employee and his progress. Even the Labor Code of the Russian Federation can not give accurate answers to all the questions that arise.

Mandatory conditions for the provision

The student's right to paid study leave is protected by the Labor Code of the Russian Federation, so it is illegal to simply refuse to provide him. However, the student must also understand that the requirements for his education are also strict. For example, the Labor Code stipulates that a student is obliged to show academic success, otherwise the organization has the right to refuse him. This point is the most controversial - the whole point is that the code does not explain by what criteria study can be considered successful, which leaves room for the organization itself to act. It is customary to consider a session passed without “tails” as a sign of successful study.

Requirements are also educational institution in which the employee is trained. The institution must have state accreditation, which, according to the TC, is considered a sign of an undeniably high quality of teaching. A student may additionally request a paper confirming the presence of state accreditation with a certificate - a call, however, in most cases this is superfluous - such information is entered into the certificate itself.

Employees receiving education in non-governmental organizations, the company has every right not to let go at the session and other events related to obtaining education, except for the case when this opportunity is assigned to the employee by a clause of the employment contract or contract.

Therefore, the employee should probably discuss the provision of study leave even before employment - this will avoid many problems in the future.

Finally, there is one more condition - study leave is granted to an employee only if he receives the first education. You should be most careful with this point - it is very problematic to figure out which education can be considered a second and which cannot be, especially for those who are not aware of the current system of education at universities.

]Despite the fact that everything seems to be clear with secondary education, there is also an interesting point here - even if an employee has a diploma of qualification in secondary education, but he continues to study at training courses for mid-level specialists, leave him must be provided.

With regard to higher education, the second is education, for example, undergraduate programs with a bachelor's degree. In this case, the company has no obligation to provide study leave to the employee, and again it is necessary to review the clauses of the contract in order to try to find information regulating such relations there.

But if an employee with a bachelor's degree decided to continue his studies in a master's program, this is not considered a second education - in this case, the employee can fully enjoy the rights that the Labor Code offers him.

Length of study leave

University students should be paid leave only in cases where their form of study is part-time or part-time. For full-time students
study holidays are not paid, however, they also have the right to unpaid leave enshrined in the Labor Code of the Russian Federation. Unfortunately, most of them are not aware of this possibility and, as a result of their ignorance, are forced to find compromises, such as working night shifts.

It is useful for full-time students to know, first of all, that they are entitled to as much as four (!) months of unpaid leave in case of passing the final qualifying work and for one more month for passing certification state exams. Considering that, as a rule, VKR and state certification are not very scattered in time, these two unpaid holidays can be combined into one. In addition, two weeks are guaranteed for employees who pass entrance examinations, including examinations for admission to the master's program after the bachelor's degree.

With regard to employees - students receiving secondary education, all the same procedures apply, however, the vacation periods have been reduced. For example, only two months instead of four are allocated for passing the state final certification, and only 10 days are given for passing entrance examinations.

Are study holidays paid for part-time students? The organization must provide such students with paid leave. for each session (courses 1 and 2 - 40 days, all subsequent ones - 50 days). In addition, for writing a final qualifying work, a correspondence student has the right to immediately 4 months of paid leave.

Learn more about paying for study leave in the video.

Should working hours be reduced?

Granting study leave to an employee is not the only guarantee to which an employee who is receiving education is entitled.
The Labor Code of the Russian Federation also provides him with the opportunity to shorten his working week. In a better position are again full-time and full-time students correspondence department, after all they are entitled to a 7-hour workweek shortened during the 10 months prior to graduation final qualifying work and state certification.

Moreover, these 7 hours must also be paid by the organization, but not in full, but only in the amount of 50% of the hourly tariff rate (also, payment should not be lower than the minimum wage). How the additional 7 hours of rest will be provided to the employee, the Labor Code does not explain, which means that it is obvious that the employee himself must reach a consensus on this issue with his superiors.

It is possible both to reduce the working day, and to provide an additional day off. In this case, it is best to conclude an additional agreement with the employer that regulates this issue, or include the corresponding clause in an existing paper.

Decor

First of all, the HR specialist must accept from the employee all the necessary documents, which include:

1. Help - a call from the university or SSU.
2. An application from an employee for granting him study leave (there is no sample, the application can be drawn up in free form by hand).
3. Certificate of state accreditation of the educational institution (at the request of the authorities).

Unlike the statement help-call form approved by the Ministry of Education of Russia; this document may be invalidated if it is not executed correctly. The paper must contain the reason why the employee should be granted study leave and the validity period.

Help - the call consists of 2 parts: the first is filled before the session starts, and the second - after it ends. The second part of the certificate should contain information about what success the employee has achieved in his studies - on this basis, the organization can draw a conclusion about the overall success of the employee's training in general and the provision of educational leave to him in the future.

Data on the granted study leave must be recorded in the employee's personal card; otherwise, the study leave is issued in the same way as a regular annual one.

In a general sense, all the same rules apply to study leave as to annual leave. Based on this, it is concluded that payment for any vacation, including educational, in no way depends on the number of holidays included in it. In this situation, holidays are considered simple calendar days.

There are several more examples of situations that can cause difficulties for a HR specialist. For example, what if an employee works part-time in an organization, having also a main place of work. Should study leave be paid? In this case, the requirements of the Labor Code do not apply to an additional place of work, therefore, an employee may be granted study leave in agreement with the authorities, or may not be granted - in such a situation, the Labor Code prescribes only the main place of work.

In addition, there is disagreement as to when study leave should be paid to an employee. It should be clarified that the period of 3 days before the start of the vacation, which is relevant in standard cases, is not valid here. The Labor Code does not give an exact answer - it is only important that vacation pay in this case must be paid before the vacation.

Do I need to pay my partner for study leave? We invite you to watch the video.

According to the provisions of the Labor Code of the Russian Federation, not all student employees are entitled to such a privilege, but only:

• receiving the first education;
• students in institutions with state accreditation;
• having academic success.

Each session, the student is entitled to leave with pay.

To do this, he must provide the following documents:

• student ticket;
• certificate-call from the institute (Article 137 of the Labor Code);
• a document confirming the state accreditation of the educational institution;

Documents are provided to the director of the company. Such a vacation, like a standard planned one, must be paid before it starts.

Who will not be given?

It turns out that there are such cases:

• if a person receives a second (also subsequent) higher education;
• not having success in studies (Article 177 of the Labor Code);
• education takes place in a commercial university without accreditation;
• citizen works part-time.

REFERENCE. A separate question - what is considered a successful study? Only fives? No triplets? The Labor Code does not provide an answer to this question. Most companies understand this point as follows: the student has no student debt.

How long the study leave will last depends on many circumstances.(Art. 173,, 176 of the Labor Code of the Russian Federation). It should be remembered, however, that here there are restrictive limits - for example, for first and second year students of the correspondence department, the maximum is forty days per session. So, now let's move on to the main question: "How is study leave paid?"

Who is responsible for payment?

Is study leave paid for distance learning? Yes, but it all depends on the specific case, each of which you can find out below.

How is student leave paid?

It all depends on what kind of education a person receives, where he studies.

If this is the first higher education and he provided the employer with the relevant documents, the payment for educational leave occurs as expected, by the organization where the student works.

In other cases, a working student usually negotiates with the employer about a vacation “at his own expense”, that is, or try to take it. And here it all depends on what kind of relationship he has with the management of the company.

Is an employer obligated or required to pay for study leave? An entrepreneur is not at all obliged to satisfy requests for administrative leave, even the most deserving citizens.

It is enough for him to weightily say that in the absence of this employee, the business will suffer losses - that's all. The law does not provide for any punishment for intractable employers.

In the overwhelming majority of cases, if the employee successfully copes with his duties at work, the directorate meets him halfway and provides a week or two to pass the exams. But anything happens, often the employee has no choice but to quit.

So it is for this reason that students who study at the interview stage clarify the issue of leave for the session. Training cannot coincide with other holidays. It should be remembered that even a student cannot be deprived of the right to a planned annual paid vacation.

How is it calculated?

This question has many formulations, and here are some of them: “How to calculate study leave for part-time students?”, “How is student leave paid for part-time students?”.

Such a day off is paid according to the same principle as the annual planned one. Namely - based on the average income, which general rule calculated per year.

Let's remember exactly how this is done. First you need to calculate the average daily income. In the formula, it will be denoted by S:

• S = Z/(12*29.3);
• Z is the average income;
• 12 - the number of months;
• 29.3 is the state-established average number of days in a month.

Now that we know the average daily income (S), we can calculate the vacation pay that will be given to the student. They will be labeled O:

• O = S * number of vacation days.

Before holiday pay the entrepreneur will withhold personal income tax from the resulting amount.

The obligation of the organization to pay for study leave

Can an employer not pay study leave? No, the obligation of the enterprise, if the employee is registered in accordance with the rules of labor legislation (recall that these norms do not apply to workers), as well as:

• receives a first education or studies at an evening school;
• this is his main place of work (Article 287 of the Labor Code);
• the student successfully copes with the academic load(does not have “tails”. In other words, we are talking about a session. But if suddenly in the middle of autumn a frame with a guilty head comes to the director and asks for a couple of days to pay off the debt - otherwise deductions - we can only talk about days at our own expense );
• the educational institution has state accreditation.

What if the employer refuses to pay?

Firstly, first answer the question of whether the employee has the right to it. And it may be that relations with the company are not at all sealed by an employment contract, but by a civil law one - that is, in this case we have paid services, what kind of vacation can we talk about?

Secondly, if an employee was previously expelled and is now receiving education at another university, this also does not oblige the entrepreneur to pay out of his own pocket for his studies - otherwise than by a court decision.

If the situation is completely transparent and devoid of ambiguity, you should first ask for an audience with a superior person and talk, with a hint that the employee knows his rights and, if anything, is ready to defend them.

Secondly, you can file a complaint with the commission on labor disputes, the prosecutor's office or the court (if such violations are systematic and the appeal to the labor inspectorate did not work).

But all this later.

And what to do first, if they don’t even let you in?

To begin with, the employee faces a dilemma: to obey and lose, perhaps, the university, or to show character and be put out of the door for absenteeism?

This is quite possible - if you just take it and not go to work. True, if we are talking about the usual planned rest, then absenteeism will not be considered absenteeism, even if the satrap refuses to comply. But the fact of the matter is that according to the law, study days off are not included.

Therefore, you can try to do this: the employee addresses the boss with a notice of impending absence from work with reference to the legislation and an explanation of the reasons. And you need to make sure that the head of the company accepted it - this is especially important!

In the future, this paper will play a role in the trial. This way you can save not only workplace, but also a salary and it is possible even to increase your authority in the eyes of the team and the employer itself.

ADVICE! If the court is inevitable, then in no case should one take up the case alone, without the help of an experienced lawyer specializing in labor law.

Firstly, the layman is rarely aware of all the nuances and possible loopholes in the law - and on the side of the entrepreneur there will be a venerable lawyer and, probably, more than one.

The statement of claim is submitted to the court of general jurisdiction at the location of the organization in the number of copies based on the number of participants in the analysis. It will need to attach the following papers:

• general passport;
• training documents;
• refusal of the authorities to pay and / or provide;
• correspondence with the boss;
• duty check.

Responsibility of the employer for failure to provide rest

If it is established that the rights of a citizen have been violated, the supervisory authority will issue an order to satisfy the requirement to grant leave - this is the first thing. Secondly, if the entrepreneur does not come to his senses, this threatens him with liability under Article 5.27 of the Code of Administrative Offenses and fine - up to fifty thousand rubles.

Of course, the best thing is to live peacefully, including with those who provide jobs. But if necessary, it is best to first consult with an experienced labor dispute lawyer - he will tell you how best to proceed in a particular situation - with his help you can resolve the issue even without a trial.

In the previous article, we talked about the fact that vacation is different, we examined in detail, which is provided to each employee annually.

Another type of leave is educational, which can be provided to an employee at his request. What kind of vacation is this, who can count on it and how study leave is paid - we will understand this below in the article.

Study leave is also called student leave, the employee needs it if he is still studying in parallel with work. It is not provided to everyone and not always, but only under certain conditions.

Conditions for granting study leave:

• Education must be full-time or part-time when studying at higher or secondary vocational schools;
• The training may take any form if the employee is receiving primary education or studying in an evening general education institution;
• The training received by the worker should be the first;
• The educational institution must have state accreditation;
• The presence of a certificate-call from an educational institution confirming successful study.

If all these conditions are met, then the employee can count on receiving student leave for the duration specified in the call certificate. But, as a rule, the duration of study leave does not exceed 30 calendar days.

Features of granting study leave

I want to highlight three features that employers need to pay attention to.

1. It is important for the employer to remember that study leave is in no way connected with the main paid one, it is provided separately.

That is, an employee can rest for 28 calendar days a year prescribed by the Labor Code of the Russian Federation, and also go, for example, at the time of passing the session on study leave for up to 30 calendar days.

2. One more important point. Study leave can be granted at any time labor activity employee at his request, set out in the application, subject to the above conditions. It does not matter how much he has worked - a week, a month or a year, the employer is obliged to release the employee.

For comparison, with regard to annual paid leave, another rule applies: you need to work for at least six months in order to be able to rest.

3. Last moment. If holidays fall on study leave, they are recognized as an ordinary day of study leave and are paid as a normal day. That is, the duration of the vacation does not increase by the number of holidays.

For comparison, if a public holiday falls on the main paid vacation, then this day is excluded from its duration, and the vacation itself is extended for this day, that is, the employee goes to work later.

This rule does not apply to student leave. If the order states that the employee is entitled to a study leave of 14 calendar days, then that is how much he will be on it, whether there are holidays in this period or not.

Study leave payment

Very often, employees have a question whether these days will be paid to him and in what amount.

The Labor Code of the Russian Federation gives an unequivocal answer that the employer must pay all days of study leave, and student leave is calculated in the same way as for the main paid one.

That is, 12 calendar months preceding the month of going on student leave are taken for calculation. If the employee has worked less than 12 months, then the time period that has been worked out for this employer is taken.

Documenting

As for documents, everything is standard here too.

The employee is required to write an application, to which to attach a certificate-call from the educational institution. Help-call is required! Without it, the employer has the right to refuse to provide student leave.

If necessary, the employer may require from his employee a certificate confirming the state accreditation of the educational institution. A copy of this document can be obtained by the employee directly at the place of study.

Based on the application, an order is drawn up, for example, using unified form T-6.

On the basis of the order, vacation pay is calculated and paid. Read how vacation pay is calculated.

In the personal card T-2 in the 8th section, a note is made about the employee's departure on study leave. If there is a personal account, information about this is also entered into it.

In the time sheet on the days of absence of the employee, the code designation "U" is put.