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Grounds for the provision of unpaid leave

Today, from the point of view of the interests of the employer one of the most popular and expedient ways of settling labor relations is the provision of unpaid leave (hereinafter referred to as leave) at the request of the employee.

As for the period for the provision of such leave, according to a general rule, p. 1 of art. 26 of the Law of Ukraine “On leaves” on the basis of “for family reasons” leave can be provided only up to 15 calendar days a year.

But, as you know, the Law “On the organization of labor relations under martial law” (hereinafter referred to as the New Labor Law) the above limitation of leave for the period of martial law was canceled. This means that leave of more than 15 days can only be provided within the limits of martial law, the period of which is extended each time by Decrees of the President.

Therefore, it is necessary to monitor carefully the dates of the provision of leave “for the period of martial law”: the New Labor Law, which removes restrictions of 15 days, was adopted on March 15, 2022, but entered into force only on March 24, 2022. It means, the application and the order for leave with reference to the excess of the standard period due to martial law can be dated exclusively from 24.03.2022.

Since the provision of such leave under the law entirely depends on the initiative of the employee, in order to avoid any disputes, as well as accounting errors, we recommend that the employee clearly indicates the period in the application for leave, preferably in the format “from… to”. The same period will be duplicated in the order for the provision of the corresponding leave.

It is advisable that the period for the provision of leave with reference to martial law fit within the period of establishment of martial law that is relevant on the date of filing the application for leave. Therefore, if there is a stable connection with the employee, from the point of view of fixing the employee’s initiative for such leave, the safest is to receive his relevant applications and issue orders for a new term each time the martial law period is extended.

For example, at the time the New Labor Law came into force, martial law was extended until 25.04.2022 (05:30). That is, the most correct wording of the application and the order for leave is, for example: from 24.03.2022 to 24.04.2022. After all, purely formally, long-term leave could not be provided outside the period of martial law.

Since martial law was extended on 22.04.2022 by the Law on Approval of the Decree of the President until 25.05.2022 (5:30), it is advisable to receive an employee’s application for the next leave no earlier than 22.04.2022, the end date of which will be until 25.05.2022.

Taking into account the above mentioned principles, it is necessary to check the grounds and terms for the provision of leaves before entring into force of the New Labor Law, that is, until 24.03.2022. At that time, leave could be provided either “for family reasons”, that is, for 15 days, or “for the period of quarantine”, as this is the ground (similar to the period of martial law) in accordance with p. 2 of art. 26 of the Law “On leaves” as well allowed to exceed the standard period.

It should be taken into account that as of the beginning of martial law in Ukraine and until 09.03.2022, the Resolution of the Cabinet of Ministers No. 1236, which constantly extends the quarantine period, provided for the introduction of quarantine in Ukraine until 31.03.2022. This means that if a leave application was made with reference to quarantine in the period before 09.03.2022, then it could only provide for a period until 31.03.2022.

The amendments to Decree No. 1236 came into force only on 09.03.2022, which established quarantine in Ukraine until 31.05.2022. Therefore, applications with reference to quarantine after 31.03.2022 can only be dated from 09.03.2022.

Summing up the foregoing, we recommend you to monitor carefully the grounds for the provision of unpaid leave for a period exceeding 15 calendar days, and, if possible, each time to receive a new application from the employee and to issue a new order for leave in case of continuation of the grounds for their provision (martial law or quarantine).