What is paid leave stipulated by the state and how to calculate it?

The state stipulates that maternity leave and annual leave are paid leave, and the calculation formula is as follows:

1. According to Article 6 of my country's "Special Regulations on Labor Protection of Female Employees": Pregnant female employees Prenatal check-ups are performed during working hours, and the time required is included in working hours. Although Article 6 does not clearly limit the number of prenatal check-ups, normal and necessary prenatal check-ups should be included in working time and cannot be calculated according to sick leave, maternity leave, personal leave, absence from work, etc.

2. According to the "Regulations on Paid Annual Leave for Employees", if an employee has worked for 1 year but less than 10 years in total, the annual leave is 5 days; if the employee has worked for 10 years but less than 20 years, the annual leave is 5 days. 10 days; for those who have been employed for 20 years or more, the annual leave is 15 days. National statutory holidays and rest days are not included in paid annual leave. However, if one of the following circumstances occurs, you will not be able to enjoy the annual leave of that year.

Calculation method of annual leave for employed personnel: According to the new regulations, the period when an employee works for the same or different employers, and the period deemed to be working in accordance with laws, administrative regulations or the provisions of the State Council, shall be counted as cumulative working time, and the employee’s consecutive Only those who have worked for more than 12 months can enjoy paid annual leave.

Extended information:

Paid leave

Paid annual leave means that workers can enjoy a certain period of paid leave after working continuously for more than one year. annual leave.

China’s labor law provides in principle provisions on paid annual leave, but it does not stipulate the vacation time and specific operation methods of paid annual leave. Instead, it designates the State Council to formulate corresponding specific measures. On December 7, 2007, the 198th executive meeting of the State Council of China passed the "Regulations on Paid Annual Leave for Employees", which came into effect on January 1, 2008. At this point, employees have legal protection for paid annual leave. On December 25, 2013, the business manager of a hotel in Lushan posted on Weibo his work arrangements for 2013 and 2014, and said that all employees would take a vacation after dinner in the evening, and the vacation would last for 70 days. Netizens joked that they wanted the boss to take temporary leave during the holidays. After China's reform and opening-up transformation in 1992, the reform of the paid leave system was officially implemented.

On February 10, 2015, the All-China Federation of Trade Unions held a "Briefing Meeting on the National Two Sessions". In 2015, more than 40 proposals and suggestions will be submitted to the "National Committee of the Chinese People's Political Consultative Conference", with the proposals focusing on people's livelihood protection.

1. Types of leave

1. Annual leave can be taken

The right to rest is a civil right stipulated in the Chinese Constitution, and workers should enjoy it equally. In order to equally protect the rest and vacation rights of all types of employees and fully mobilize the work enthusiasm of the majority of employees, the regulations broadly cover all types of employers, stipulating that: agencies, groups, enterprises, institutions, private non-enterprise units, and individual businesses with employees Employees in units such as households who have worked continuously for more than one year are entitled to paid annual leave. The unit should ensure that employees enjoy annual leave.

During the consultation process, some localities, departments and netizens hope to increase the number of annual vacation days from a maximum of 15 days to 20 or 25 days. After repeated studies with relevant departments, the Legislative Affairs Office believes that the number of annual leave days should be compatible with my country’s current economic and social development level and the affordability of enterprises and other units. Therefore, the regulations stipulate that if an employee has worked for 1 year but less than 10 years in total, he will be entitled to 5 days of annual leave; if he has been working for 10 years but less than 20 years, he will be entitled to 10 days of annual leave; if he has been working for 20 years or more, he will be entitled to 15 days of annual leave. At the same time, the regulations also stipulate that national statutory holidays and rest days are not included in annual vacations.

2. Not taking annual leave

It is true that some employees cannot take annual leave due to work needs. In order to protect the rights and interests of these employees, the regulations stipulate that if employees are unable to enjoy annual leave due to work reasons, the unit must pay corresponding compensation in addition to normal salary income. As for the standard of compensation, during the consultation process, many opinions believed that it should comply with the provisions of the Labor Law on "employees who are scheduled to work on statutory holidays shall be paid no less than 300% of their wages." Accordingly, the regulations stipulate that if the unit cannot arrange for employees to take annual leave due to work needs.

3. Other vacations

Other vacations that Chinese employees can enjoy mainly include: winter and summer vacations, family leave, sick leave, personal leave, etc. The regulations clearly stipulate the relationship between annual leave and these leaves:

First, annual leave and winter and summer vacations. In China, schools have always implemented a winter and summer vacation system, and the number of winter and summer vacation days enjoyed by faculty and staff (winter vacation is 2 to 3 weeks, summer vacation is 5 to 6 weeks) far exceeds the number of annual vacation days stipulated in regulations. Therefore, the regulations stipulate that employees who enjoy winter and summer vacations in accordance with the law and whose number of vacation days is more than the number of annual vacation days shall not enjoy annual vacation for that year.

Second, annual leave and sick and personal leave. During the consultation process, some departments, localities and netizens proposed that while protecting employees' annual leave rights, they should also ensure the normal working order of the unit. Employees who take sick leave or personal leave for a long time should no longer enjoy annual leave benefits. .

We have adopted the above opinions after repeated studies with the Ministry of Personnel, the Ministry of Labor and Social Security, and the All-China Federation of Trade Unions. The regulations stipulate that if an employee takes personal leave for more than 20 days in total and the unit does not deduct wages in accordance with regulations, he will not enjoy annual leave for that year; Employees who have worked for 1 year but less than 10 years have taken sick leave for more than 2 months in total. Employees who have worked for 10 years but less than 20 years have taken sick leave for more than 3 months. Employees who have worked for 20 years or more have taken sick leave for more than 4 months. Yes, you do not enjoy annual leave for that year.

Third, annual leave and family leave. During the consultation process, some departments, localities and netizens suggested that family leave and annual leave are two leave systems with different functions and should not offset each other. After research with the relevant departments, we believe that this opinion is reasonable. Accordingly, the regulation deletes the provision in the draft for comments regarding family leave being used as offset against annual leave.

4. Special circumstances

During the process of soliciting opinions, many opinions believed that employees are in a weak position relative to employers. If the supervision measures are too principled and not very operable, , the annual leave system may be difficult to implement in many units, especially enterprises. Accordingly, the Regulations stipulate three aspects of the annual leave supervision mechanism:

First, the personnel departments and labor and social security departments of the local people's governments at or above the county level shall, in accordance with their powers, monitor the units' implementation of these Regulations. Take the initiative to conduct supervision and inspections.

Second, trade unions protect employees’ annual leave rights in accordance with the law.

Third, if the unit does not arrange for employees to take annual leave and does not provide annual leave wages in accordance with the provisions of these regulations, the personnel department or labor and social security department of the local people's government at or above the county level shall order correction within a time limit according to their authority; If corrections are not made within the time limit, in addition to ordering the unit to pay annual leave wages and remuneration, the unit shall also pay additional compensation to employees based on the amount of annual leave wages and remuneration; those who refuse to pay annual leave wages, remuneration and compensation shall be deemed as civil servants and reference If the person who is governed by the Civil Servant Law belongs to a unit, the directly responsible person in charge and other directly responsible personnel shall be punished in accordance with the law; if the person belongs to another unit, the labor and social security department, the personnel department or the employee shall apply to the People's Court for compulsory enforcement.

2. Leave Standards

1. Make it clear that employees must accumulate working hours when changing jobs

The "Regulations on Paid Annual Leave for Employees" only stipulates that agencies, groups, Employees in enterprises, institutions and other units who have worked continuously for more than one year can enjoy paid annual leave. Among them, employees who have worked for more than 1 year but less than 10 years are entitled to 5 days of annual leave; those who have been working for 10 years but less than 20 years are entitled to 10 days of annual leave; those who have been working for 20 years or more are entitled to 15 days of annual leave. There is some controversy in this regulation because it does not mention how employees’ working hours will be calculated when they change jobs.

The "Implementation Measures for Paid Annual Leave for Enterprise Employees" announced on the 27th clarified this. Article 4 of the Measures stipulates that the period during which an employee works for the same or different employers, as well as the period of work deemed to be equivalent in accordance with laws, administrative regulations or the provisions of the State Council, shall be counted as accumulated working time.

2. The annual leave of the current year for those who change jobs can be converted

According to the provisions of Article 5 of the "Implementation Measures for Paid Annual Leave for Enterprise Employees", employees who are new to the employer and have worked for 12 years moon. The conversion method is: (the remaining calendar days in the unit in the current year ÷ 365 days) × the number of annual leave days that the employee should enjoy throughout the year.

If Nanchang Xiao Zhang worked in unit A for 5 years and switched jobs to unit B on September 1, 2013, then the remaining "calendar days" for Xiao Zhang in unit B in 2013 are 122 days. According to regulations, his annual leave days should be 5 days. Then the number of annual leave days for Xiao Zhang in 2013 should be (122÷365)×5 days≈1.67 days. Since 0.67 days is less than one full day, Xiao Zhang’s annual leave days in 2013 are one day. From the second year onwards, Xiao Zhang’s vacation days in unit B will be calculated cumulatively in accordance with the provisions of Article 4 of the "Measures".

3. Family leave, etc. are not included in annual leave.

Li Jinhua said that the implementation measures also stipulate that when employees enjoy more winter and summer vacation days than their annual leave days, they will not enjoy the annual leave for that year. annual leave. If it is true that due to work needs, the number of winter and summer vacation days enjoyed by employees is less than their annual leave days, the employer shall arrange to make up the annual leave days.

4. Untaken annual leave wages will be paid at 300% of daily wage income

According to regulations, if the employer arranges for employees to take annual leave, but the employee proposes not to take annual leave due to personal reasons and in writing For those who are on vacation, the employer can only pay their wages during the normal working period.

The daily wage income for calculating untaken annual leave wages is calculated by dividing the employee’s monthly wage by the number of monthly pay days (21.75 days). The monthly salary refers to the employee’s average monthly salary after excluding overtime wages in the 12 months before the employer pays his/her untaken annual leave wages. If the employer has worked for less than 12 months, the average monthly salary will be calculated based on the actual month. "Monthly wages do not include overtime wages, but include bonuses, salary allowances, etc." Li Jinhua said.

5. Untaken annual leave after termination of the contract can be converted into salary

If the labor contract is terminated or terminated with the unit, but the annual leave has not been enjoyed yet

The conversion method is: : (Number of calendar days that have elapsed in the unit in the current year ÷ 365 days) × Number of annual leave days that the employee should enjoy throughout the year - Number of annual leave days that have been arranged for the current year.

Li Jinhua added that if the employer has arranged annual leave for employees that year, the number of days in excess of the annual leave that should be taken will not be deducted.

"Untaken annual leave wages" is 300% of daily wages. If Xiao Chen has worked in the company for 3 years, he can get 5 days of annual leave. In 2013, he terminated his contract with the company. When the contract was terminated, Xiao Chen had worked in the company for 200 days in 2013, but Xiao Chen only enjoyed 1 day of annual leave. If his daily wage was 100 yuan, then Xiao Chen would not deserve any unpaid leave. The remuneration during the vacation should be: [(200÷365)×5-1]×100 yuan×3=300 yuan (Note: (200÷365)×5-1≈1.74 days, 0.74 days is less than one full day, no To pay the remuneration, take 1 day).

6. Number of days off after six years of work

The new regulations make it clear that if an employee has worked for 1 year but less than 10 years in total, the annual leave is 5 days; if the employee has worked for 10 years but less than 20 years in total, For those who have been employed for 20 years, the annual leave is 10 days; for those who have been employed for 20 years, the annual leave is 15 days.

Employees who have worked continuously in the company for 1 to 5 years and do not fall into the circumstances specified in Article 4 of the new regulations can enjoy 5 days of leave in accordance with the new regulations on the premise that the vacation regulations of the original company remain unchanged. Paid leave; employees who have worked for 6 years or more can still enjoy 10 days of annual leave according to the original regulations of the company; if the company's vacation regulations change, employees will take vacation according to the new regulations of the company. At the same time, according to the new regulations, national statutory holidays and rest days are not included in annual vacations; if employees enjoy winter and summer vacations in accordance with the law, annual vacations will be offset against winter and summer vacations.

7. Multi-year regulations

According to the new regulations, annual leave is generally not arranged across years. However, if the unit really needs to arrange annual leave for employees across years due to production and work characteristics, it can span one year. Annual arrangement.

This has two meanings: First, annual leave can be arranged collectively within one year, or it can be arranged in sections, such as taking part in the first half of the year and taking part in the second half of the year, but it cannot be "overdrawn" in one go. Units that need to arrange annual leave across multiple years may need approval from relevant departments. Specific regulations will be clarified after the release of detailed rules.

As for the calculation method of the year, whether it is calculated based on the natural year or based on the employee's "actual length of service" in the unit still needs to be clarified after the detailed rules are released. Most units will adopt the "actual length of service" calculation method based on the nature of their industry; or make an agreement in advance in the signed labor contract.

8. Annual leave for employees

If the unit is unable to arrange annual leave for employees due to work needs and with the consent of the employee, the unit shall pay the employee's normal salary and welfare benefits. Compensation shall also be provided at a rate of 300% of the employee's daily wage. For specific daily wage standards, experts recommend formulating them in accordance with the current overtime wage base calculation method.

In addition, if the unit neither arranges for employees to enjoy annual leave nor provides compensation in accordance with regulations, the personnel department or labor and social security department of the local people's government at or above the county level shall order corrections according to their authority; if the unit refuses to make corrections, Penalties shall be imposed in accordance with relevant laws and regulations such as the Labor Law, Labor Contract Law or Civil Servant Law. As for the specific penalty standards, experts analyzed that although there were previous requirements for the establishment of paid leave provisions in relevant labor regulations, the penalty details and standards have not been clarified, so the specific standards will not be clarified until the implementation details are promulgated.