How to send an employee on study leave. Money question: how is study leave paid?

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 ending, and the next exam session is coming soon. In accordance with the law, these employees are entitled to study leave. Let's consider the features of their provision, documentation and payment, and how an accountant can avoid additional problems.

Guarantees and compensation for employees combining work with training are provided for in Art. Art. 173 - 177 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 Professional Education.” In particular, such guarantees include the right of these employees to additional (study) leave. Study leaves can be divided into two types. Firstly, these are leaves 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 preparatory departments of higher educational institutions, if they were students of these departments. And secondly, study leaves that employees can receive 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 training. education.

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

Please note that employees are entitled to educational leave for all forms of training: full-time, evening and part-time.

Conditions for granting study leave

According to Art. 11 of the Labor Code of the Russian Federation, all employers are required to provide educational leave, regardless of their form of ownership and type of activity. At the same time, despite the employee’s right to study leave, these leaves are provided provided that the requirements established by Art. Art. 173 - 177 Labor Code of the Russian Federation. Thus, study leave can be taken out by an employee who is studying full-time, part-time or part-time (evening/shift) forms of study at an educational institution that has state accreditation. If the educational institution does not have state accreditation, the employee is granted leave only if the collective or employment agreement reflects the condition for granting study 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 professional education of the appropriate level and are sent for training by the employer on the basis of an employment contract or training agreement concluded in writing. If the above documents are available, the employee has the right to apply for study leave, despite the fact that the education he receives is not his first.

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

Example 1. Employee of Kristall LLC N.A. Mikhailov is on probation. He is studying part-time in his second year at university. In May 2011, the employee submitted to the organization all the necessary documents to apply 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, according to which during the probation period the employee is subject to the provisions of labor legislation and other regulatory legal acts containing labor law norms, collective agreements, agreements and local regulations of the organization.

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

— dismissal of an employee at the initiative of the employer (including as someone who has not completed the probationary period) while the employee is on vacation is not allowed (Article 81 of the Labor Code of the Russian Federation);

— the probationary period does not include periods when the employee was actually absent from work (Article 70 of the Labor Code of the Russian Federation).

If an employee is studying simultaneously in two educational institutions, study leave is granted at his choice only in connection with studying in 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. Internal and external part-time workers are granted and paid for study leave only at their main place of work.

Example 2. Employee of Morozko JSC A.V. Novikov is receiving his first higher professional education at 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 of an employee receiving study leave. A.V. Novikov can receive study leave while studying at a given institution if the employment contract concluded with him states that study leave is provided provided that a document is presented from the educational institution confirming the employee’s call to the session.

Pay attention! Responsibility of the organization for violation of the procedure for granting study leave

If, in accordance with labor legislation, 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 employing organization may be brought to administrative liability 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 payment of vacation 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 an amount not less than 1/300 of the Bank of Russia refinancing rate on unpaid amounts for each day of delay. Interest is accrued from the next day after the due date for 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 on the employer, regardless of whether he is at fault.

The procedure for granting and documenting study leave

Study leaves provided by the employer are divided into leaves with preservation of average earnings and without preservation of wages. Vacations With while maintaining average earnings, the employer is obliged to provide employees with part-time and part-time (evening) forms of education during the entire training period. Leave without pay is issued to employees to take entrance exams to various educational institutions, as well as to take final exams at the end of preparatory departments of universities. Also, unpaid leave during the study period 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:

— certificate of invitation from the educational institution;

— application for study leave.

Note. By order of the Ministry of Education of Russia, the forms of the summons certificate are approved only for higher and secondary specialized educational institutions. Therefore, employees studying in educational institutions of primary vocational education submit these documents according to forms independently developed by these institutions.

Help-call. This document from the educational institution is the basis for granting study leave, as well as other guarantees to employees who combine work with study. The form of the summons certificate 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 study leave must submit a summons certificate in the form given in Appendix No. 1 to Order of the Ministry of Education of Russia dated May 13, 2003 N 2057. An employee entering a university and who has the right to leave without pay, must submit a summons certificate in the form given in Appendix No. 2 to the said Order. Employees entering and studying in secondary specialized educational institutions submit certificates of summons in the forms approved by Order of the Ministry of Education of Russia dated December 17, 2002 N 4426.

A summons certificate is issued by the educational institution to the employee before the start of study leave. It consists of two parts: directly from the call certificate and the confirmation certificate. The organization receives this document with the first part completed. It, in particular, 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 study leave.

Please note: the duration of study leave (both with preservation of average earnings and unpaid), indicated in the summons certificate, 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 final qualifying work and passing final state exams4 months2 months——Passing final state exams (if the program of the educational institution does not provide for writing and defending a final qualifying (diploma) work upon completion of training)1 month1 month——Passing exams——30 calendar days within one year—Passing final exams in grade IX———9 calendar days Passing final exams in grade XI (XII)———22 calendar days

Table 2. Duration of study leaves without maintaining average earnings

b) to prepare and defend final qualifying work and pass final state exams;

c) to pass final state exams/final exams (if the program of the educational institution does not provide for writing and defending a qualifying (diploma) thesis upon completion of training)

15 calendar days per academic year

10 calendar days in the academic year

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

The second part of the summons certificate is filled out by the educational institution and certified with a seal after study leave. It confirms that the employee used the study leave for its intended purpose, namely: he was actually in the educational institution that issued him the specified summons certificate. The employer gives this part to the employee upon receipt of a summons certificate from him before the vacation, and the employee returns it when returning to work from study leave. If the employer fails to provide this document at the request of the employer, the period of absence of the employee from work may be classified 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 various types of disciplinary sanctions provided for in Art. 192 of the Labor Code of the Russian Federation (reprimand, reprimand, dismissal). To apply a disciplinary sanction, the employer must carry out a number of mandatory procedures established by Art. 193 Labor Code of the Russian Federation.

Application for study leave. Registration of study leave is a right, not an obligation of the employee. Therefore, he may or may not formalize it. 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 completely, but partially. For example, if the duration of vacation is 15 calendar days, specified in the call certificate, the employee can take out study leave for 10 calendar days.

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

Based on the above properly 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 form N T-6<1>;

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

- reflects information on the provision of study leave in section. VIII “Vacation” of the employee’s personal card in form N T-2<1>;

— indicates vacation days in the working time sheet according to 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 Resolution of the State Statistics Committee of Russia dated January 5, 2004 N 1.

Note. There is no need to require a copy of the certificate of state accreditation of an educational institution from an employee who has applied for study leave, since all the necessary information (certificate number, date of issue, name of the body that issued the certificate) is available in the summons certificate.

The procedure for paying vacation pay

Vacation pay for employees during 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 specifics of the procedure for calculating average wages, 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 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 the employee no later than three days before it starts. However, this article does not specify which days are meant—working or calendar days. According to the author, the employing organization is obliged to issue study leave no later than three working days before the start of the leave.

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

Table 3. Procedure for granting study leave to part-time employees

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

In accordance with Art. 173 of the Labor Code, the organization is obliged to provide paid study leave for a period of four months to employees who receive higher education through correspondence and evening forms of study, in order to prepare and defend their final qualifying work and pass the final state exams. Payment of vacation pay during such leave 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 does not have the right to pay for the specified leave in installments (for example, monthly), since this is not provided for by labor legislation.

Study leave is of a targeted nature. 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 a final thesis, pass state exams, etc. Therefore, if the employee decides not to take this leave, then simultaneously with the end of the period for which it should be provided, the employer’s obligation to provide and pay for it ceases. The employer cannot pay monetary compensation for unused vacation, since such a right is not given to him by the Labor Code. Moreover, when paying the said compensation, the employer’s actions are regarded as a violation of labor legislation, and therefore administrative liability measures established by Art. 5.27 Code of Administrative Offenses of the Russian Federation.

Note. According to the norms of the Labor Code, monetary compensation for non-use of educational 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 leaves

As stated above, the duration of study leave that an organization must provide to a student employee is determined on the basis of a summons certificate. However, this period is not mandatory for the employer if the employee decides 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 or paid to him at all.

Example 3. Employee of Avangard LLC N.A. Smirnova submitted to the organization a letter of invitation from the university for the provision of paid study leave from April 1 to April 25, 2011 (25 days). In her 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 entitlement leave at his own discretion - in whole, in part or not at all.

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

It often happens that the call certificate indicates one period of study leave and, in accordance with this period, the employee is accrued vacation pay, but the confirmation certificate states another period (smaller). This is possible, for example, if the employee passed the exams ahead of schedule. In such a situation, the vacation pay amounts are not recalculated and the vacation does not stop.

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

Example 4. Employee of JSC "Agat" S.M. Ivanov studies by correspondence at a higher educational institution. He was granted paid study leave within the period specified in the summons certificate - from May 14 to June 5, 2011. S.M. Ivanov passed his tests and exams ahead of schedule, so the confirmation certificate presented when he went to work on June 6, 2011 indicates other periods of study leave - from May 14 to May 31, 2011.

The fact of passing a session or defending a diploma early does not oblige the employee to interrupt his study leave and go to work. Vacation amounts are not recalculated in such cases. And the employee’s actions cannot be qualified as absenteeism.

If non-working holidays occur during study leave, 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. Impact of non-working holidays on the duration and payment of educational and annual leave

Note. Study leaves are granted not for the working year (like annual ones), but for the 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 vacations at the same time - on annual paid leave and on educational leave. The fact is that these leaves have different purposes and are regulated by different norms of the Labor Code. Study leave is granted on the basis of the provisions of Section. VII “Guarantees and compensations”, and annual paid leave - in accordance with Section. V "Rest time". This means that if the specified vacations coincide in time, the employee is infringed on one of his rights - the right to receive guarantees and compensation or the right to rest. Taking this into account, annual paid leave is transferred to another time or, by agreement of the employer and employee, is added to study leave. The basis is Art. Art. 124 and 177 of the Labor Code of the Russian Federation.

Example 5. Employee of Cosmos LLC S.B. Potapov submitted to the organization a letter of invitation from the university for the provision of 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 by S.B. Potapov from June 27 or at a later date.

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

An employee who falls ill during study leave is not granted temporary disability benefits for days of illness falling on vacation days and is not extended for these days. This follows from Art. 183 Labor Code of the Russian Federation, paragraphs. 1 clause 1 art. 9 of the Federal Law of December 29, 2006 N 255-FZ, as well as paragraphs. “a” clause 17 of the Regulations on the specifics of the procedure for calculating benefits for temporary disability, pregnancy and childbirth, monthly child care benefits for citizens subject to compulsory social insurance in case of temporary disability and in connection with maternity, approved by the Decree of the Government of the Russian Federation of June 15. 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 falls ill while on study leave, the employer must pay him sick leave only for days of illness falling during the period after the end of study leave.

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

Calculation of taxes and insurance contributions from amounts paid for educational leave

Income tax. Expenses for payment of study leave granted taking into account the requirements of Art. Art. 173 - 177 of the Labor Code of the Russian Federation, are taken into account for profit tax purposes as part of labor costs. This is stated in paragraph 13 of Art. 255 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 April 22, 2010 N 03-03-06/1 /288 and dated 04/13/2010 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 payment of educational leave are not recognized when calculating income tax.

Personal income tax and insurance premiums. Amounts of payment for educational leave are subject to personal income tax and insurance contributions to extra-budgetary 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 Federal Law No. 212-FZ of July 24, 2009, the specified amounts are not included in the list of payments exempt from personal income tax and insurance contributions.

According to the provisions of the Labor Code of the Russian Federation Only those students who:

• are engaged in obtaining their first higher education (Part 1 of Article 177 of the Labor Code of the Russian Federation);
• study in educational institutions that have state accreditation (Part 1 of Article 173 of the Labor Code of the Russian Federation);
• study well.

All rights of a working student are guaranteed and secured by Chapter 26 of the Labor Code of Russia, and are also protected by Law 273-FZ “On Education”.

Workers studying can count on academic leave:

1. in higher educational institutions (Article 173.1 of the Labor Code of Russia);
2. in institutions of secondary vocational education (Article 174 of the Labor Code of Russia);
3. at the evening department (Article 176 of the Labor Code of Russia).

The employer must provide this group of working students with academic leave, regardless of the length of their work experience. According to Part 1 of Art. 287 of the Labor Code of Russia, an employee can receive academic holidays only at his main place of work. In the case of receiving two degrees, the student is entitled to leave only one at a time.

Article 287 of the Labor Code of the Russian Federation. Guarantees and compensations for persons working part-time

Guarantees and compensations for persons combining work with education, as well as persons working in the Far North and equivalent areas, are provided to employees only at their main place of work.

Other guarantees and compensations provided for by labor legislation and other regulatory legal acts containing labor law norms, collective agreements, agreements, local regulations are provided to persons working part-time in full.

Who pays an employee for distance learning?

Vacation pay is paid entirely by the employer. Employees with “student” status are paid in the same way as regular paid leave. A working student must write a statement addressed to the management.

Can an employer avoid such an obligation?

To the question whether the employer, that is, the organization in which the part-time student works, is obliged to pay for student leave, the answer will be unequivocally affirmative. The supervisor cannot refuse to grant and pay for educational leave to a working student. If an employer does not give and, especially, does not pay for study leave, this is regarded as non-compliance with labor laws.

Exceptions

There are exceptions in which the employer does not have to pay for academic holidays for student employees, for example:

• the employee has full-time education;
• the educational institution does not have state accreditation;
• poor employee performance;
• the period for taking exams for preparatory departments of universities and entrance exams to various educational institutions is not paid;
• acquisition of a second higher education (Article 177 of the Labor Code of Russia).

Additional provision

Working students who receive higher education in part-time and part-time departments are required to be provided, in addition to the regular one, with additional leaves, while maintaining their wages. How many days in a year, we will consider below.

When passing the final examination papers:

To pass the final state examination papers, the employer is obliged to allocate and pay for four months. In addition to employees receiving higher education, other employees also have the right to receive three months for passing their dissertation, in addition to the regular vacation.

For working students who receive education at colleges and technical schools on part-time and evening courses, management is obliged to give additional time off while maintaining their pay. When passing the final examination papers:

• in the first two courses - thirty days;
• in the third and higher courses - forty days.

When passing the final state examination papers, sixty days are allowed, according to the student plan.

In most cases, citizens who combine work and study do not even know about their main rights, namely the existence of paid study leave. Unscrupulous managers take advantage of this. But if an employee knows the Labor Code, he will always be able to defend and defend his rights.

study leave

The employee's graduation means for the employer that he will have to do without the employee for four months. But in order to receive such leave, the employee must provide a summons certificate in a certain form. He will go on study leave at the employer’s expense only if he is receiving higher education for the first time. To obtain a second higher education, the employee will have to take leave at his own expense.

Already from the second or third year of university, students, on their own initiative, strive to earn extra money, taking part-time or full-time jobs in order to gain practical experience along with theoretical knowledge. Managers learn about this, as a rule, after receiving a summons certificate. It is impossible to refuse study leave because of its length or due to the absence of a replacement, but in connection with obtaining a second specialist diploma, it is possible. One point is important here. An employee is entitled to this type of guarantee only when receiving education at the appropriate level for the first time. That is, an employee who is studying to become an economist and is also a certified lawyer is not entitled to targeted leave at the expense of the employer. In this case, the employee must agree on a vacation at his own expense. But without an organizational order, an employee’s absence from the workplace is regarded as absenteeism with unpleasant consequences for him.

Few employers are eager to employ student workers to carry out serious projects. Combining work and study causes disagreements between the parties, since at an inopportune moment for the company, an employee can bring a summons certificate and leave for the session. Therefore, even during hiring, the employer’s administration warns young applicants that the rhythm of work in the company does not include absence due to exams or tests. They are offered to solve problems with study leave on their own and in their free time from work.

And when employees contact the HR department, instead of additional leave for study, they are sometimes persistently advised to take vacation at their own expense or annual paid leave.

The workers agree, but then go to court, trying to recover monetary compensation. They prove the forced nature of leave without pay by evidence of the transfer of an application and a summons certificate to the employer and the lack of his response or a direct refusal to grant study leave.

If there is no such evidence, the employee will not be able to win the lawsuit.

So, subject to compliance with the requirements of the law, the employee has the right to go on study leave, and it is in the interests of the employer to check the presence of mandatory conditions for granting it. It is important to keep track of a number of points

Conditions for granting study leave.

1. Training must be carried out by correspondence or part-time.
For full-time or so-called full-time education, guarantees Art. 173 of the Labor Code of the Russian Federation do not apply. In other words, if study takes place outside of work and involves mandatory attendance at lectures, seminars and practices, then study leaves (with or without pay) are not allowed. An employee who has entered the full-time department of the institute and continues to work will have to get out on his own.

2. State accreditation of the educational program is required.
Previously, it was important that an educational institution had state accreditation, but now it is important that the educational program have such accreditation (Part 1 of Article 173 of the Labor Code of the Russian Federation). Educational organizations post similar information on their websites.

This information about state accreditation is indicated in the summons certificate in a special line.

If an employer wants to check the accreditation of an educational program, then this information can be found via the Internet or by contacting a specific educational institution.

3. Education at this level must be completed for the first time.
An employee is entitled to study leave only when receiving education at the appropriate level for the first time (Part 1 of Article 177 of the Labor Code of the Russian Federation). Law No. 273-FZ will help you understand the levels of education and determine which one is the first and which is the next.

It is important to remember about two levels of professional education: bachelor's degree - the first level and specialty, master's degree - the second level. If an employee has a bachelor’s degree, but he entered a master’s program, then the guarantees under Art. 173 of the Labor Code of the Russian Federation is due to him, since the levels of education are different and, moreover, the second is higher in status (Part 5 of Article 10 of Law No. 273-FZ).

Cases when education is considered second (subsequent), which means the employer has the right to refuse an employee study leave, are listed in Part 8 of Art. 69 of Law No. 273-FZ. The guarantees provided for student workers will not be received by those who are studying:

a/for bachelor's degree programs or specialty programs - by persons who have a bachelor's degree, a specialist's diploma or a master's degree;
b/for master's programs - by persons who have a specialist's diploma or a master's degree.

In other words, a Bachelor of Economics (diploma) who has entered a Bachelor's degree in Law will not be able to qualify for paid study leave; this is the same level of education. The same applies to a Master of Law who wants to change his field and go to study to become a journalist. He has already exhausted the limit of targeted vacations while receiving his first legal education.

Thus, if the employee meets these requirements, then study leave should be issued. Otherwise, the employer faces a lawsuit with a high risk of losing. The employee will recover money for additional leave, interest for violation of payment deadlines, compensation for moral damage and travel expenses to and from the place of study. This is confirmed by judicial practice.

Moreover, similar consequences can await the company if the employee receives a second higher education. In this case, the court will find out whether a student agreement has been concluded between the parties. If it turns out that the employer sent the employee for training regardless of the fact that he is already a specialist in another field, then the court, by virtue of Part 1 of Art. 177 of the Labor Code of the Russian Federation, can take the side of the employee. As a result, he will receive payment for study leave, interest, and moral damages.

Documents for granting study leave

Successful training at the institute will be confirmed by a summons certificate. There is no need to request an additional document from the employee signed by the dean or other university employee. Such actions are not provided for by law.

Some employers, in addition to the challenge certificate, require employees to provide another document confirming successful completion of the curriculum. In doing so, they refer to Part 1 of Art. 173 of the Labor Code of the Russian Federation, in which this requirement is mandatory for the provision of study leave. But such a claim is unfounded, since by virtue of Part 4 of Art. 177 of the Labor Code of the Russian Federation, an employee has the right to receive all guarantees and compensation on the basis of a summons certificate. This is what indicates the success of the training. This conclusion is confirmed by judicial practice.

The duration of study leave cannot be shortened. In practice, in order to go on study leave, employees submit two documents: an application and a summons certificate. You can do without the first one, but a summons certificate is needed, otherwise the employee will be left without additional leave.

A summons certificate is the main document that confirms the employee’s right to study leave under Art. 173 Labor Code of the Russian Federation. It contains the necessary information to assess the employee’s right to the specified guarantee, that is, the form of training, information about the availability of accreditation, the period of absence of the employee to pass the session.

Now the form of the summons certificate is uniform (approved by Order of the Ministry of Education and Science of Russia dated December 19, 2013 No. 1368; hereinafter referred to as Order No. 1368). Previously, two forms were used: for secondary and higher educational institutions. Students of general education institutions did without an official call-up certificate form.

When receiving the certificate, you need to check the completeness of its completion: the start and end dates of the session or entrance exams, the reason for absence (intermediate, final certification, preparation and defense of the final qualifying thesis), etc. In addition, the certificate must bear the seal of the university. This will help avoid problems with tax authorities, who carefully check the validity of expenses.

Order on granting study leave

Order on granting educational leave As a rule, it is drawn up in form No. T-6, although you can develop and approve your own form (Part 4 of Article 9 of the Federal Law of the Russian Federation dated December 6, 2011 No. 402-FZ).

But the certificate is not always filled out correctly, for example, the code of the specialty being acquired is omitted, and employees sometimes present a copy of it instead of the original document, promising to bring the original later. These problems are solved this way.

When there is not enough information or there are doubts about the authenticity of a document, it makes sense to send a request to the educational institution. Courts reach such conclusions when considering “moot” disputes.

Official confirmation from the university should not be ignored, as this information will allow the employee to prove the employer’s guilt in court.

The situation with the absence of the original summons certificate is not so clear. When an employee abuses his right, ignores the employer’s demands and deliberately delays submitting the original summons certificate, the court may side with the employer. But if the employee presented the certificate later for objective reasons, for example, due to a delay at the university, then there are no grounds for refusing to issue and pay for study leave. When the court determines that the employee studied, he will be reimbursed the amounts required by law.

Reducing the period of study leave

Another controversial issue concerns the reduction of study leave. Sometimes employees, on their own initiative or at the request of managers, want to leave for a session later or return to work earlier than the time specified in the call-up certificate.

Rostrud, in paragraph 1 of letter No. 697-6-1 dated September 12, 2013, responded negatively to this, justifying this with the intended purpose of study leave. Officials believe that the duration of leave should remain the same regardless of the circumstances, employee requests and other conditions. In other words, the parties do not have the right to change the period specified in the certificate of summons from the university.

Therefore, study leave must be issued for the entire period, and, if necessary, civil contracts must be drawn up with student employees.

But if an employee does not have enough leave to pass the “tails,” then he will have to ask the employer for leave at his own expense.

Targeted holidays

In addition to paid educational leaves, employees are entitled to targeted leaves at their own expense.

Student workers have the right not only to paid leave to pass the exam or diploma, but also to leave without pay. The latter are also provided on the basis of a call certificate.

Study leave usually means leave for which the employee will receive average earnings. But this doesn't always happen. For example, if an employee is just planning to become a student, then he will take entrance exams to a university at his own expense. These events will take no more than 15 calendar days (paragraph 2, part 2, article 173 of the Labor Code of the Russian Federation). But for admission to a secondary vocational institution, one third less time is allocated - 10 calendar days (paragraph 2, part 2, article 174 of the Labor Code RF). In order to receive leave at his own expense to pass entrance examinations, the employee will have to submit a certificate of summons for the specified number of days (Part 4 of Article 177 of the Labor Code of the Russian Federation).
Study leave must be paid in full before it begins.

An employee who combines work and study has the right to count on additional vacations while maintaining average earnings. Ignoring this rule ends in a conflict that will have to be resolved in court.

If the employee does not miss the deadline to go to court with a demand for recovery of the uncollected amount, then the decision will be in his favor. Payment for study leave, of course, subject to compliance with all conditions for its provision, is the responsibility of the employer.

Therefore, the employer needs to ensure timely payment of vacation pay. Read how study leave is calculated

But determining the amount correctly is not everything; it must be issued on time. For study leave, the three-day rule applies. It states that payment for vacation is made no later than 3 days before its start (Part 9 of Article 136 of the Labor Code of the Russian Federation)

However, this norm does not say whether 3 days should be counted in calendar or working days. According to Rostrud, we are talking about calendar days. If the issuance of vacation pay coincides with a weekend or holiday, then it must be postponed to an earlier date, and it does not have to be done the day before.

In some companies, it is customary to pay for study leave after receiving the detachable part of the call-up certificate. This approach is justified by the fact that it is impossible to return the money if you fail the exams. After an employee complaint or a scheduled GIT inspection, the system will have to be changed. Since the Labor Code of the Russian Federation does not have a special procedure for paying average earnings for targeted leave, you need to be guided by Part 9 of Art. 136 Labor Code of the Russian Federation. In other words, the employer has 3 days to issue “study” vacation pay.

Suppose an employee received the money on time in full, but fell ill during his studies. In this case, it is not clear whether it is necessary to postpone study leave, recalculate vacation pay and pay temporary disability benefits.

There is no need to extend or transfer leave, since this opportunity is provided only for annual paid leave. In addition, the vacation period is set by the university, and the employer and student only comply with it. The only way out is for the employee to get another summons certificate from the institute.

At the same time, the employee should not hope for double payment for the same period. He will not receive money for sick leave that coincides with study leave. This follows from paragraph. 1 tsp. 1 tbsp. 9 of the Federal Law of December 29, 2006 No. 255-FZ and sub. “a” clause 17 of the Regulations, approved. Decree of the Government of the Russian Federation dated June 15, 2007 No. 375.

An employee who has paid for his training has the right to a tax deduction. Mandatory conditions are that the educational institution has a license and provides documents on actual expenses (subparagraph 2, paragraph 1, paragraph 3, subparagraph 2, paragraph 1, article 219 of the Tax Code of the Russian Federation). The list of documents for the tax office is given in the letter of the Federal Tax Service of Russia dated November 22, 2012 No. ED-4-3/19630@.

So, there will be no negative consequences if you pay for your study leave on time and in full. Delaying payments or establishing additional (beyond the law) conditions for receiving them will help the employee prove a violation of rights.

Withholding of paid educational leave amounts from the employee

An employer may withhold money from an unscrupulous employee for study leave.

The period of study leave is determined by the educational institution. The call certificate indicates the start and end dates of the vacation, and the duration in calendar days. This period is reflected in the order.

Sometimes employees take exams early. Employers learn about this from the tear-off part of the challenge certificate, the so-called confirmation certificate. It indicates the student’s full name, the name of the university and the actual duration of study. Employees bring confirmation after the session and it happens that the final dates differ from those indicated in the call certificate.

Some employers regard such a discrepancy as a basis for deducting from the employee the amounts that he received before the start of his study leave. But workers dispute such actions by management. The courts see no reason for withholding, since Art. 137 of the Labor Code of the Russian Federation there is no such reason as completing a full course of study before the expiration of study leave.

There is another situation: an employee “fails” the session, does not pass the exams, and is expelled from the university for poor academic performance. In this case, it is also impossible to withhold vacation pay, since unsatisfactory training results do not apply to the grounds for withholding listed in Art. 137 Labor Code of the Russian Federation. For the same reason, the employee will not have to return the amounts received for study leave even if he does not return the detachable part of the summons certificate.

It is more difficult when an employee, having completed his studies at the employer’s expense, quits before the end of the period stipulated by the student agreement. Some employees fail to challenge the withholding of vacation pay, and the courts take the side of employers.

But not everyone shares this point of view. There is an opinion that an employee cannot be required to reimburse the average earnings paid during study leave. The employer has the right to expect reimbursement of costs associated with training an employee if he quit before the agreed date (Article 249 of the Labor Code of the Russian Federation). Such costs mean the cost of training, consumables, additional classes, etc. However, payment of student leave is a guarantee provided for in Art. 173 Labor Code of the Russian Federation. The employer does not have the authority to cancel it unilaterally, since it is established at the state, and not local or contractual level.

An employee who believes that he was illegally denied leave has 3 months to go to court (Part 1 of Article 392 of the Labor Code of the Russian Federation). If he misses this deadline without good reason, he will lose the case. Therefore, in similar situations, it is worth preparing for legal proceedings and trying to convince the court that the average earnings for study leave are included in the company’s expenses stipulated in the student agreement. But the employer has a high chance of getting money from an unscrupulous student employee.

The question arises: Does the duration of study leave change if a holiday falls during it?

The period of study leave remains the same as indicated in the summons certificate. You need to pay for all days (regular, holidays) falling during the period of such vacation.
For annual paid vacations during which a holiday falls (Article 112 of the Labor Code of the Russian Federation), a special rule is provided: the holiday is not included in the number of calendar days of vacation (Part 1 of Article 120 of the Labor Code of the Russian Federation). In fact, this gives the employee the opportunity to rest longer. Some employers apply this rule to educational leave, and in a peculiar way. They exclude holidays from the period of such leave, reducing its total duration. This is an unfortunate decision that the employee will be able to challenge in court. The rule established by Art. 120 of the Labor Code of the Russian Federation does not apply to study leaves, since they do not relate to annual leaves, but are provided for a certain period depending on the training program. In addition, the employee is entitled to average earnings for the entire period of study leave, including non-working holidays.

Study leave - the main issues arising in practice

The Labor Code has five articles establishing guarantees for employees who combine training with work. However, the law does not specify the procedure for their provision, which leads to problems in practice.

Often, an employer requires proof of successful training from a student employee; in particular, they ask employees for a copy of the grade book or an extract from the grade sheet. Such demands are unlawful. If an employee has applied for study leave and provided a certificate of invitation from an educational institution, the employer is obliged to issue him study leave, since the law does not require him to somehow confirm the success of his studies. To receive leave, the employee must submit an application for study leave and attach to it a certificate of challenge, which serves as proof for the employer that the employee is studying successfully and has been admitted to the exams.

Employers often do not know what to do when study leave coincides with the main leave. In such cases, the employer must ask the employee how much leave he intends to take. An employer cannot refuse study leave. He also cannot, on his own initiative, transfer annual leave to other dates. The employee must decide what vacation he will take. Of course, it is more profitable for an employee to take study leave, since during this time, including holidays, he retains his average earnings and still has the right to annual leave. If an employee asks to be granted study leave, the employer is obliged to postpone the annual leave to another time and extend it for the days of study leave.
If an employee wishes to take a session during annual leave, then he must withdraw the application for study leave, and the employer must issue annual leave to the employee as a general rule.
To avoid conflicts, it makes sense for the employer not to include such an employee in the vacation schedule for the time when the employee is called to a session.
Often, employers refuse to grant an employee study leave due to the fact that he has already received a bachelor's degree and entered a master's program. Such a refusal is also unlawful, since in this case the employee is receiving education at a different level, and therefore, by law, has the right to study leave (Part 5, Article 10 of the Federal Law of December 29, 2012 No. 273-FZ “On Education in the Russian Federation” ).
In practice, employers have a question: when to pay for study leave, before receiving the second part of the call certificate, or after? The employer is obliged to pay for study leave no later than three days before its start. Since the law does not specify how to pay for study leave, it is subject to general rules for paying leave. For violation of the payment deadline for study leave, the employer must pay the employee monetary compensation in the amount of 1/150 of the Bank of Russia key rate of the amounts that were not paid on time.
In addition, the employer may be subject to a fine of up to 50 thousand rubles. in accordance with Part 6 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation, and the employee can recover compensation for moral damage in court in accordance with Article 237 of the Labor Code of the Russian Federation.

If an employee worked under a fixed-term employment contract and its term expires during study leave, vacation pay must still be paid in full, since the law does not allow study leave to be granted in parts, and therefore it cannot be paid in parts. If the employee’s right to study leave arose before the expiration of the contract, the employer is obliged to provide the employee with guarantees in full.