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丁春燕律师|带薪休假那点事

点击次数:   更新时间:2020-07-14 17:27:07   分    享:


符合什么条件可以休带薪年休假?

带薪年休假,简称年休假。《企业职工带薪年休假实施办法》第三条规定:职工连续工作满12个月以上的,享受带薪年休假。
What conditions can you meet to take paid annual leave?
Paid annual leave, referred to as annual leave. Article 3 of the measures for the implementation of paid annual leave for employees in enterprises stipulates that employees who have worked continuously for more than 12 months shall enjoy paid annual leave.

特 别 提 示  Special tips

一、连续工作满12个月以上,既包括在同一单位连续工作满12个月,也包括在不同单位连续工作满12个月;二、所谓连续就是不间断,比如在上一家单位工作满9个月,离职后立刻进入新单位,连续工作满3个月后,即可享受带薪年休假。倘若在上一家单位工作哪怕工作满十几年,间隔半个月后再进入新单位,则必须要在该家单位连续工作满12个月后才可以享受带薪年休假。“连续工作”的确认,一般以单位缴纳社保记录为准。

firstly, working continuously for more than 12 months, including not only working in the same unit for 12 months, but also working in different units for 12 months; secondly, the so-called continuous work is uninterrupted, for example, after working in the previous unit for 9 months,you immediately enter the new unit, after 3 months of continuous work, you can enjoy paid annual leave. If you work in the previous unit for more than ten years and then enter the new unit after an interval of half a month, you shall work continuously for 12 months before you can enjoy paid annual leave. The confirmation of "continuous work" is generally based upon the social security records paid by the unit.


二、能休几天带薪年休假?
How many days of paid annual leave can you take?
带薪年休假的天数是由职工累计工作年限确定的。《企业职工带薪年休假条例》第三条规定:职工累计工作已满1年不满10年的,年休假5天;已满10年不满20年的,年休假10天;已满20年的,年休假15天。国家法定休假日、休息日,探亲假、婚丧假、产假等国家规定的假期以及因工伤停工留薪期间不计入年休假的假期。累计年限的确定,由劳动合同、社保等记录为准。
当职工进入新单位后,倘若符合休年休假的条件,当年度的年休假天数需要进行折算:(当年度在本单位剩余日历天数÷365天)×职工本人全年应当享受的年休假天数。折算后不满1整天的部分不享受年休假。
举例说明,小A累计工作满11年,2019年在原单位工作到3月25日,3月26日到新单位上班,则他2019年在新单位的年休假天数应为286÷365天×10=7.83,则其在新单位应休年假天数为7天。
The number of days of paid annual leave is determined by the cumulative working years of the staff and workers. Article 3 of the regulations on paid Annual leave of Enterprise employees stipulates that employees who have worked for less than one year but less than 10 years shall have 5 days of annual leave; those who have reached 10 years but less than 20 years shall have 10 days of annual leave; and those who have reached 20 years shall have 15 days of annual leave. National statutory holidays and rest days, family visit leave, marriage and funeral leave, maternity leave and other state-prescribed holidays, as well as holidays that are not included in annual leave during the period of work stoppage and retention of pay due to work-related injuries. The accumulative fixed number of years shall be determined by the records of labor contract, social security and so on.
When the employee enters the new unit, if the conditions for annual leave are met, the annual leave days in the current year need to be converted: (the remaining calendar days in the unit in the current year / 365 days) x the number of annual leave days that the employee should enjoy in the whole year. After conversion, those who are less than 1 whole day do not enjoy annual leave.
For example,A has worked for a total of 11 years, worked in the original unit until March 25 in 2019 and went to work in the new unit on March 26, then his annual leave days in the new unit in 2019 should be 286 / 365 days × 10 days 7.83 days, then the number of days of annual leave in the new unit should be 7 days.

休不休年休假谁说了算?
Who is in charge of taking annual leave or not?
《企业职工带薪年休假实施办法》第九条规定:用人单位根据生产、工作的具体情况,并考虑职工的意愿,统筹安排年休假。用人单位确因工作需要不能安排职工年休假或跨一个年度安排年休假的,应征得职工本人同意。也就是说,何时休年休假是单位说了算,只是要考虑职工的意愿,也仅仅是考虑。而不休年休假,则需要职工同意,此时,职工说了算。
Article 9 of the measures for the implementation of paid annual leave for employees in enterprises stipulates that the employer shall arrange annual leave as a whole according to the specific conditions of production and work and taking into account the wishes of the staff and workers. If the employer is really unable to arrange the annual leave of the staff and workers or arrange the annual leave for another year due to the needs of the work, it shall obtain the consent of the staff and workers themselves. In other words, when to take annual leave is the unit's decision, only to consider the wishes of the staff and workers, but also only to consider. And non-stop annual leave, it requires the consent of the staff and workers, at this time, the staff and workers have the final say


不休年休假工资怎么发?

How to pay for non-stop annual leave?
分两种情况:
一、单位安排休年休假,但职工因本人原因且书面提出不休年休假的,工人单位可以只支付正常工作期间的工资收入。当然用人单位需要注意,必须是因为职工本人原因、并且是书面提出。所以,并非是职工本人意愿或者仅是口头提出的,用人单位都不能适用此款规定;
二、经职工本人同意,单位不安排休年休假的,则应以未休假的天数为基数,按其日工资300%支付工资报酬,其中300%也包含正常工作期间的工资收入。也就是说,年休假工资是要在正常工资收入的基础上,多增加200%的日工资×未休假天数。
前述日工资标准为:职工前12个月剔除加班工资后的月平均工资÷21.75天。在本用人单位不满12个月的,按实际月份计算月平均工资。
There are two situations:
1. The unit arranges annual leave, but if the staff and workers propose endless annual leave in writing for their own reasons, the worker unit may only pay the wages during the normal working period. Of course, the employer needs to pay attention, it shall be the reasons of the staff and workers themselves, and it is put forward in writing. Therefore, the employer cannot apply this provision if it is not the will of the employee or is only put forward orally.
Secondly, with the consent of the staff and workers, if the unit does not arrange annual leave, it shall pay 300% of its daily salary on the basis of the number of days without leave, of which 300% also includes the salary income during the normal working period. In other words, the annual leave salary is to increase the daily salary by 200% x the number of days without leave on the basis of the normal wage income.

The above-mentioned daily wage standard is: the average monthly salary of employees excluding overtime pay in the first 12 months / 21.75 days. If the employer is less than 12 months old, the average monthly salary shall be calculated according to the actual month.


作者:丁春燕律师 奉贤区公司劳动案件律师 奉贤劳动律师

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