What is paid vacation stipulated by the state and how to calculate it?
1. According to Article 6 of China's "Special Provisions on Labor Protection for Female Employees", if pregnant female employees need prenatal examination during working hours, the required time is included in working hours. Article 6 Although there is no explicit limit on the number of birth check-ups, normal and necessary birth check-ups should be counted as working hours, not sick leave, maternity leave, personal leave and absenteeism.
2. According to the Regulations on Paid Annual Leave for Employees, employees who have worked for more than 1 year but less than 10/year will have an annual leave of 5 days; For those who have completed 10 years but less than 20 years, annual leave 10 days; Annual leave 15 days for those who have completed 20 years. National statutory holidays and rest days are not included in paid annual leave. However, in any of the following circumstances, you cannot enjoy the annual leave of the current year.
Calculation method of annual leave for on-the-job employees: According to the new regulations, employees who work in the same or different employers, as well as those regarded as working periods by laws, administrative regulations or the State Council regulations, should be included in the accumulated working hours, and employees can enjoy paid annual leave only after working continuously for more than 12 months.
Extended data:
paid leave
Paid annual leave means that workers can enjoy paid annual leave for a certain period of time after working continuously for more than one year.
China's labor law stipulates paid annual leave in principle, but it does not stipulate the vacation time and specific operation methods of paid annual leave, but designates the State Council to formulate corresponding specific measures. On February 7th, 2007, the198th executive meeting in the State Council, China adopted the Regulations on Paid Annual Leave for Employees, which came into effect on February 7th, 2008. At this point, employees' paid annual leave has been legally guaranteed. 20 13,13 On February 25th, the business manager of a hotel in Lushan exposed his work schedule for 20 13, 20 14 in Weibo, and said that all the staff would have a holiday after dinner in the evening, with a holiday of 70 days. The netizen laughed and said that he wanted the boss to work in the holiday office. After China's reform and opening up from 65438 to 0992, the reform of paid vacation system was formally implemented.
On February 15, the All-China Federation of Trade Unions held a briefing on the situation of the two national conferences. In 20 15, more than 40 proposals will be submitted to the CPPCC meeting, focusing on people's livelihood security.
I. Types of leave
1, you can take annual leave.
The right to rest is a civil right stipulated in the Constitution of our country, and workers should enjoy it equally. In order to equally protect the rest and vacation rights of all kinds of employees and fully mobilize the enthusiasm of the broad masses of employees, the regulations cover all kinds of employers, and stipulate that employees of government agencies, organizations, enterprises, institutions, private non-enterprise units, individual industrial and commercial households with employees and other units can enjoy paid annual leave if they work continuously for more than 1 year. The unit shall ensure that employees enjoy annual leave.
In the process of soliciting opinions, some localities, departments and netizens hope to increase the annual vacation days from 15 days to 20 or 25 days at most. After repeated research with relevant departments, the Legislative Affairs Office believes that the number of annual leave days should be compatible with China's current economic and social development level and the affordability of enterprises and other units. Therefore, the regulations stipulate that employees who have worked for more than 1 year but less than 10 year shall have an annual leave of 5 days; Annual leave 10 days if it is over/kloc-0 years but less than 20 years; Annual leave 15 days for those who have completed 20 years. At the same time, the regulations also stipulate that national statutory holidays and rest days are not included in the annual leave.
2. No annual leave.
There are indeed some employees who can't take annual leave because of work needs. In order to protect the rights and interests of these employees, the regulations stipulate that if employees do not enjoy annual leave due to work reasons, the unit shall pay corresponding compensation in addition to normal wage income. As for the standard of compensation, in the process of soliciting opinions, many people think that it should conform to the provisions of the labor law, "if workers are arranged to work on statutory holidays, they should pay not less than 300% of their wages." Accordingly, the regulations stipulate that the unit really cannot arrange annual leave for employees because of work needs.
3. Other holidays
Other holidays that employees in China can enjoy mainly include: winter and summer vacation, family leave, sick leave, personal leave, etc. The Regulations clearly define the relationship between annual leave and these holidays:
First, annual leave and winter and summer vacations. In China, the school has been implementing the system of winter vacation and summer vacation, and the number of days of winter vacation and summer vacation enjoyed by faculty members (two to three weeks in winter vacation and five to six weeks in summer vacation) far exceeds the prescribed number of days of annual vacation. Therefore, the regulations stipulate that employees who enjoy winter and summer vacations in accordance with the law and have more vacation days than annual vacation days do not enjoy the annual vacation of that year.
Second, annual leave, sick leave and personal leave. In the process of soliciting opinions, some departments, localities and netizens put forward that while protecting employees' annual leave rights, they should also ensure the normal working order of the unit. Employees who take sick leave or leave for personal affairs for a long time are no longer entitled to annual leave. After repeated research with the Ministry of Personnel, the Ministry of Labor and Social Security and the All-China Federation of Trade Unions, we adopted the above opinions. According to the regulations, if an employee asks for leave for more than 20 days and the unit fails to deduct wages according to the regulations, he will not enjoy the annual leave of that year; Employees who have worked for 1 year but are less than 10 years have taken sick leave for more than 2 months, employees who have worked for 10 but are less than 20 years have taken sick leave for more than 3 months, and employees who have worked for more than 20 years have taken sick leave for more than 4 months, so they are not entitled to the annual leave of that year.
Third, annual leave and family leave. In the process of soliciting opinions, some departments, localities and netizens suggested that family leave and annual leave are two vacation systems with different functions and should not offset each other. After studying with relevant departments, we think this opinion is reasonable. Accordingly, the regulations have deleted the provisions in the draft for comments on home leave to offset annual leave.
4. Special circumstances
In the process of soliciting opinions, many people think that employees are in a weak position relative to employers. If the regulatory measures are too principled and not operable, the annual leave system may be difficult to implement in many units, especially enterprises. Accordingly, the "Regulations" stipulates the supervision mechanism of annual leave from three aspects:
1. Personnel departments and labor and social security departments of local people's governments at or above the county level shall, according to their functions and powers, actively supervise and inspect the implementation of these Regulations by their own units.
Second, trade union organizations safeguard employees' annual leave rights according to law.
Third, if the unit fails to arrange annual leave for employees in accordance with the provisions of these regulations and fails to pay annual leave wages, the personnel department or labor and social security department of the local people's government at or above the county level shall order it to make corrections within a time limit according to its functions and powers; If no correction is made within the time limit, in addition to ordering the unit to pay annual leave salary, the unit shall also pay compensation to the employees according to the amount of annual leave salary; For those who refuse to pay annual leave salary and remuneration, and belong to the unit where civil servants and personnel managed by reference to the Civil Service Law work, the directly responsible person in charge and other directly responsible personnel shall be punished according to law; If it belongs to other units, the labor and social security department, personnel department or employees shall apply to the people's court for compulsory execution.
Second, the standard of vacation.
1, it is clear that employees should accumulate working hours when they change jobs.
The Regulations on Paid Annual Leave for Employees only stipulates that employees of government agencies, organizations, enterprises, institutions and other units who have worked continuously for more than 1 year can enjoy paid annual leave. Among them, employees who have worked for more than 1 year but less than 10 year are entitled to 5 days of annual leave; If it is more than/kloc-0 and less than 20 years, the annual leave will be 10 days; Annual leave 15 days for those who have completed 20 years. The reason why this regulation is controversial is that it doesn't talk about how to calculate the working hours of employees changing jobs.
The "Implementation Measures for Paid Annual Leave of Enterprise Employees" promulgated on the 27th made this clear. Article 4 of the Measures stipulates that if a worker works in the same or different employing units, or is regarded as working period as stipulated by laws, administrative regulations or the State Council, it shall be counted as accumulated working time.
2. The annual leave of the year of job-hopping can be converted.
According to Article 5 of the Measures for the Implementation of Paid Annual Leave for Enterprise Employees, employees are new employees of the employing unit and have worked for 12 months. The conversion method is: (remaining calendar days in the company in the current year ÷365 days) × annual leave days that employees should enjoy throughout the year.
If Nanchang Xiao Zhang worked in Company A for five years and moved to Company B on September 1 day, 2065438, then the remaining "calendar days" of Xiao Zhang in Company B in 20 13 years will be 122 days. According to the regulations, his annual leave should be five days. Then the annual leave days of Xiao Zhang in 20 13 years should be (122÷365)×5 days ≈ 1.67 days. Because 0.67 days is less than 1 complete days, the annual leave days of Xiao Zhang in 20 13 years are 1 day. From the second year onwards, Xiao Zhang's vacation days in Unit B shall be calculated cumulatively according to Article 4 of the Measures.
3. Annual leave does not include family leave.
Li Jinhua said that the implementation measures also stipulate that employees who enjoy the winter and summer vacations for more than their annual leave days will not enjoy the annual leave of that year. If the number of days of winter and summer vacation enjoyed by employees is less than the number of days of annual leave due to work needs, the employer shall arrange the number of days of compensatory annual leave.
4. Annual leave salary shall be paid at 300% of daily wage income.
According to the regulations, the employer arranges employees to take annual leave, but if the employees put forward annual leave in writing for their own reasons, the employer can only pay their wages during their normal work.
Calculate the daily salary income of annual leave salary, and convert it according to the employee's monthly salary divided by the number of days of monthly salary (2 1.75 days). The monthly salary refers to the average monthly salary 12 months after the overtime pay is deducted before the annual leave salary is paid by the employer. If the working time in the employer is less than 12 months, the average monthly salary shall be calculated according to the actual month. "The monthly salary does not include overtime pay, but includes bonus and salary allowance," Li Jinhua said.
5. If the contract is terminated without annual leave, the salary can be converted.
If the labor contract is dissolved or terminated with the company, but the annual leave is not enjoyed.
The conversion method is: (calendar days that have passed in our company in that year ÷365 days) × annual leave days that employees should enjoy throughout the year-annual leave days that have been arranged in that year. Li Jinhua added that if the employer has arranged annual leave for employees in that year, the days exceeding the converted annual leave will not be deducted.
"Annual leave salary" is 300% of the daily salary. If Xiao Chen has worked in the company for three years, he can get five days' annual leave. 20 13 terminates the contract with the company. When leaving the company, Xiao Chen worked in the company for 200 days in 20 13, while Xiao Chen only enjoyed 1 day of annual leave. If his daily salary is 100 yuan, then Xiao Chen should be paid [(200 ÷ 365) × 5-1] ×100 yuan× 3 = 300 yuan (note: (200 ÷ 365 )×
6. How many days of vacation do you have after six years of work?
The new regulations are clear. Employees who have worked for 1 year but are less than 10/year will have an annual leave of 5 days; For those who have completed 10 years but less than 20 years, annual leave 10 days; Annual leave 15 days for those who have completed 20 years.
Employees who have worked continuously in this unit for 1 to 5 years and fail to meet the requirements stipulated in Article 4 of the new regulations can enjoy 5 days paid vacation in accordance with the new regulations on the premise that the leave regulations of the original unit remain unchanged; Employees who have worked for 6 years can still enjoy 10 days annual leave according to the original regulations of the unit; If the company's leave regulations change, employees will take leave according to the company's new regulations. At the same time, according to the new regulations, national statutory holidays and rest days are not included in the annual leave; If employees enjoy the winter and summer vacations according to law, the annual leave will offset the winter and summer vacations.
7. Cross-year regulations
According to the new regulations, annual leave is generally not arranged across years, but if it is really necessary for the unit to arrange annual leave for employees across years due to the characteristics of production work, it can be arranged across 1 year.
There are two meanings here: first, annual leave can be arranged centrally within 1 year or by stages. For example, you can take part of the annual leave in the first half of the year and part in the second half, but you are not allowed to "overdraw" the annual leave at one time. Units that need to arrange annual leave across years may need the approval of relevant departments, and the specific provisions will be clarified after the detailed rules are promulgated.
As for the calculation method of fixed number of years, whether it is calculated according to the natural year or according to the "factual length of service" of employees in the unit needs to be clarified after the detailed rules are promulgated. Most units will adopt the calculation method of "factual length of service" according to their own industry nature; Or make an agreement in the signed labor contract in advance.
8. Annual leave of employees
Due to work needs, with the consent of the employees themselves, the unit cannot arrange annual leave for the employees, and the unit shall pay the employees normal wages and welfare benefits, and compensate them according to the standard of 300% of their daily wages. As for the specific daily wage standard, experts suggest that it be formulated according to the current calculation method of overtime wage base.
In addition, if the unit neither arranges employees to enjoy annual leave nor gives compensation in accordance with the regulations, the personnel department or labor and social security department of the local people's government at or above the county level shall order them to make corrections according to their functions and powers; If the unit refuses to make corrections, it shall be punished in accordance with the Labor Law, the Labor Contract Law or the Civil Service Law. As for the specific punishment standards, experts have analyzed that although there are requirements for setting up paid holidays in relevant labor laws and regulations, the punishment rules and standards are not clear, so it is impossible to clarify the specific standards before the implementation rules are promulgated.