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Many employers require employees to take off work to use up their leaves in order not to pay a wage amount for the untaken leave days. Force employees to take off work to use up their leaves, is it legal?
Is the employee paid a wage amount for the untaken leave day?
Pursuant to Article 113, Labor Code 2019, the number of personal leaves shall be prescribed as follows:
*Employee who has been working for the employer for the full 12 months:
Conditions and subjects | Number of leaves |
Normal conditions | 12 days |
Juvenile employees, employees being persons with disabilities, or persons doing heavy, hazardous or dangerous jobs; | 14 days |
Persons doing extremely heavy, hazardous or dangerous jobs. | 16 days |
The employee is added 01 more leave if he/she works over 5 years for the employers | |
*Employee who has been working for the employer for the full 12 months:
Pursuant to Clause 1, Article 66, Decree No. 145/2020/ND-CP, the following formula is applied:
Number of leaves | = | ( | Number of annual leave | + | Working seniority (if any) | ) | : 12 | x | The actual number of working months in the year. |
In case the employee has not yet taken an annual leave or has not yet fully taken the number of annual leave days, the benefits shall be as follows:
- In case the employee has not yet taken an annual leave due to employment termination or job loss:
Pursuant to Clause 3, Article 113, Labor Code 2019, the employee is entitled to receive a wage amount for the untaken leave days.
- In case the employee has not yet taken annual leave due to not having demands to work without having leaves:
In this case, the employer shall not pay a wage amount for the untaken leave days. Therefore, the employee shall take advantage of leaves before the end of the year.
In addition to the year-end leave, the parties may agree to take the previous year's leaves. In accordance with Clause 4, Article 113, Labor Code 2019, the employee may reach an agreement with his/her employer on taking of annual leaves in installments or aggregate leaves every 3 years at most.
The employer forces employees to take time off work to use up their leaves, is it legal?
In accordance with Clause 4, Article 113, Labor Code 2019, the employer shall take responsibility for prescribing annual leaves after consulting the employee’s opinions. This schedule must be informed to the employee before being into implementation.
Actually, annual leaves shall be flexible due to the employee’s demand for working in the company in order to create favorable conditions for the employees.
However, the employers shall require the employee to allocate to take annual leaves so as not to have effects on production progress and business.
In accordance with law provisions, the employers must publicize the annual leave schedule and then require the employees to take the annual leaves. In the case that the employer does not issue an annual leave schedule but forces employees to take off work to liquidate their leaves will be considered a violation of annual leave.
The employer shall be imposed with a fine of between VND 10,000,000 and VND 20,000,000 for violating the law provisions on weekly or annual leaves or public holidays. This fine is doubled with the fine of between VND 20 - 40 million (in accordance with Clause 2, Article 18 and Clause 1, Article 6, Decree No. 12/2022/ND-CP).
Although the company does not have the right to force employees to take work to liquidate the remaining year's leaves when the employer does not issue an annual leave schedule, to ensure the benefits of leave, if the request is reasonable, employees should actively do.
In accordance with Labor Code 2019, in case the employee has not yet taken annual leave, the employee is not paid with wage amount for the untaken leave days.
The employee can be defaced with untaken annual leaves if having no agreement with the employer. This is a great disadvantage for the employee.
Here is the answer for forcing employees to take off work to use up their leaves.
