During the war, it is often necessary for employees to take a leave that exceeds the number of days prescribed by law. In this case, leave without pay is granted. Under what conditions is such a leave possible, what are the specifics of its provision, limitations and documentation – read further.
Rights to leave during martial law
According to Art. 26 of Law of Ukraine "On Leave" No. 504/96-ВР of November 15, 1996 (hereinafter – Law No. 504), for family reasons and for other reasons, an employee may be granted leave without pay for a period determined by an agreement between the employee and the owner or by a body authorized by them, but no more than 30 calendar days per year.
During the threat of the spread of an epidemic, a pandemic, the necessity of self-isolation of an employee in cases established by law, and/or in the event of a threat of armed aggression against Ukraine, an emergency situation of man-made, natural or other nature, the employer may, at the request of the employee, grant them leave without pay without limitation of the term specified in part 1 of this article. The duration of such leave is determined by the agreement of the parties.
The time spent on leave, specified in the first and third parts of the above-mentioned article, is not included in the length of service, which gives the right to the annual basic vacation provided for in item 4, Part 1 of Article 9 of Law No. 504.
During the period of martial law, the issue of granting leave, in particular leave without pay, is additionally regulated by Law of Ukraine "On the Organization of Labor Relations in Martial Law" No. 2136-IX of March 15, 2022 (hereinafter – Law No. 2136). Part 3 of Art. 12 of Law No. 2136 stipulates that during the period of martial law, the employer may, at the request of the employee, grant them leave without pay without limitation of the period established by Part 1 of Art. 26 of the Law of Ukraine "On Leave", without counting the time spent on such a leave to the length of service, which gives the right to an annual basic leave, provided for in item 4, Part 1, Art. 9 of Law No. 504.
Therefore, granting the employee leave for the entire period of martial law, taking into account the extension of the period of martial law, does not contradict the current legislation.
In the event of a change in the term of martial law in accordance with Art. 26 of Law No. 504, vacations are granted for the period determined by the agreement between the employee and the owner or the body authorized by them.
Documentation of leave
The employer's documents on the granting of leave without salary on the grounds provided for in Art. 26 of Law No. 504, must accurately reflect the content of the agreement reached between the parties to the employment contract (employee and employer). In the event that the parties to the employment contract agreed on a leave period for the entire period of martial law, taking into account its possible extension, which is recorded in the relevant administrative document of the employer, with which the employee is familiar, the need for additional settlement of issues regarding the vacation period in the event of an extension of the period of martial law and there is no additional registration of administrative documents by the employer. In the event that the parties have reached an agreement on the period of leave without pay until the specific date of the end of martial law, which is determined by the relevant decree of the President of Ukraine, then the employee has the obligation to start work in connection with the end of the leave, and the issue of providing at the request of the employee/these leaves without pay and the term of such leave need to be settled between the parties to the employment contract.
Special of document management
During the period of martial law, the procedure for the organization of document management on labor relations issues, the preparation and maintenance of employment record books and the archival storage of relevant documents in areas of active hostilities must be determined by the employer independently, provided that reliable records of the work performed by the employee and accounting of labor costs are maintained.
During the period of martial law, the parties to the employment contract may agree on alternative methods of creating, forwarding and storing the employer's orders, notices and other documents on labor relations issues, and on any other available method of electronic communication, which is chosen by agreement between the employer and employee.
