If the employee has not taken annual leave, is there a legal requirement for the employer to pay sub

If the employee does not take annual leave, the employer needs to pay a subsidy, and the annual leave refers to the annual leave given to the employee. That is, employees of government agencies, organizations, enterprises, public institutions, private non-enterprise units, individual industrial and commercial households with employees, etc., who have worked continuously for more than one year, can enjoy paid annual leave.

Legal analysis

According to the relevant laws and regulations, the employer shall ensure that the employee is entitled to annual leave. Employees are entitled to annual leave, i.e., they need to meet the conditions of 12 months of continuous service, and if the time when the employee changes jobs to a new employer and the time when he or she leaves the original employer, he or she is not entitled to annual leave. Of course, if the employee has already taken annual leave in the original employer before leaving the company, the conditions for annual leave will naturally be lost in the new employer.

In order to avoid taking unnecessary responsibilities, it is recommended that employers improve the annual leave notice system. It can be stipulated in the employee handbook that the annual leave shall be applied for by the employee himself, and then reviewed and approved by the employer, so as to reduce the trouble of unified arrangement by the unit on the one hand, reduce the management cost, and on the other hand, take into account the different needs of the employee. At the same time, the employer should pay attention to the fact that at the end of a year, the annual leave of all employees should be uniformly verified, and the annual leave should be arranged for the employees who have not completed the annual leave during the year, and if the employee himself is unwilling, the employee should submit written materials, otherwise the employer should convert the salary and remuneration according to 300% of the employee's daily wage income.

Legal basis

Article 45 of the Labor Law of the People's Republic of China The State implements a paid annual leave system. Employees who have worked continuously for more than one year are entitled to paid annual leave. The specific measures are stipulated by ***.

Measures for the Implementation of Paid Annual Leave for Staff of Organs and Public Institutions》 Article 7 Where organs and public institutions do not arrange for their staff to take annual leave due to work needs, they shall solicit the opinions of the staff members themselves. Organs and public institutions shall pay their staff members annual leave wages and remuneration based on the number of days of annual leave that they should have taken. The standard of payment of annual leave salary and remuneration is:

For each day not taken, 300 per cent of the daily wage earned by the staff member in the year in which the annual leave is due, including the salary income of the staff member during the normal working period. In addition to the salary income during the normal working period, the remaining part of the annual leave salary and remuneration of the staff shall be paid by the unit in a lump sum in the first quarter of the following year, and the required funds shall be solved according to the current funding channels. Units that implement the unified payment of wages shall be included in the unified payment of wages.

If the employer is unable to arrange for the employee to take annual leave due to work needs, it may not arrange for the employee to take annual leave with the consent of the employee himself. For the number of days of annual leave that should be taken by the employee, the employer shall pay the annual leave salary and remuneration according to 300% of the employee's daily wage income.

If the unit does not arrange for employees to take annual leave and does not give annual leave wages and remuneration in accordance with regulations, the local people's personnel department or labor and social security department at or above the county level shall order corrections within a time limit according to its authority; If the correction is not made within the time limit, in addition to ordering the unit to pay the annual leave salary, the unit shall also pay additional compensation to the employee according to the amount of the annual leave salary and remuneration; For those who refuse to pay annual leave salaries, remunerations, and compensation, and belong to the units of civil servants and personnel managed with reference to the Civil Servants Law, the directly responsible managers and other directly responsible personnel shall be punished in accordance with law; If it belongs to another unit, the labor and social security department, personnel department, or employee shall apply to the people's court for compulsory enforcement.

The annual leave subsidy is only available if the annual leave has not been taken, and there are two situations in which the annual leave has not been taken: 1. At the end of the year, there is still the situation that the annual leave button is not taken (1) According to Article 10 of the "Implementation Measures for Paid Annual Leave for Employees of Enterprises": "If the employer does not arrange annual leave with the consent of the employee or arranges the number of annual leave days for the employee to be less than the number of annual leave days that should be taken, the employer shall pay 300% of the employee's daily wage income for the number of unused annual leave days that should be taken during the year Pay wages and remuneration for unused annual leave, including the wages paid by the employer to the employee during the normal working period.

In other words, if there is an unused annual leave, you can be paid three times the daily salary for the number of days you have not taken. (2) However, the second paragraph of Article 10 of the Measures for the Implementation of Paid Annual Leave for Employees of Enterprises also stipulates: "If an employer arranges for an employee to take annual leave, but the employee submits in writing not to take the annual leave due to his own reasons, the employer may only pay the employee the salary income during the normal working period."

Therefore, if your employer arranges annual leave, but you do not take it last year, you will not be able to enjoy triple salary. 2. According to Article 12 of the Measures for the Implementation of Paid Annual Leave for Employees of Enterprises, "when the employer dissolves or terminates the labor contract with the employee, if the employee fails to take the annual leave in the current year, the employee shall be converted into the number of days of untaken annual leave and pay the wages and remuneration for the unused annual leave according to the working hours of the employee in the current year, but the part that is less than one full day after conversion shall not be paid the salary and remuneration for the unused annual leave."

In other words, if an employee has unused annual leave at the time of resignation, he or she can only receive annual leave corresponding to the month he or she has worked in the current year. The specific conversion method is: (365 calendar days have passed in the current year) The number of annual leave days that the employee should enjoy throughout the year - the number of annual leave days that have been arranged in the current year.

If it is a worker who has not taken annual leave due to the closure arrangement of the unit, there is a subsidy. The employer shall calculate the number of days the employee should take the unused annual leave, and pay the employee 300% of the employee's daily wage for the unused annual leave.

Legal basis

Article 10 of the Measures for the Implementation of Paid Annual Leave for Employees of Enterprises.

If the employer does not arrange annual leave with the consent of the employee or arranges the number of leave days for the employee to be less than the number of annual leave days that should be taken, the employer shall pay the employee 300% of the daily wage income for the unused annual leave in the current year, including the salary income paid by the employer to the employee during the normal working period.

Article 11. The daily wage income for calculating the salary and remuneration for unused annual leave shall be converted according to the monthly salary of the employee divided by the number of monthly salary days (days).

Employees are entitled to the same salary during the annual leave period as they would during normal work. For employees who are subject to piecework wages, commission wages or other performance-based wage systems, the calculation and payment of daily wage income shall be implemented in accordance with the provisions of paragraphs 1 and 2 of this article.

1. During the annual leave, enjoy normal salary. 2. If the employer does not arrange annual leave, with the consent of the employee, it can enjoy the treatment of three times the daily salary. 3. If the employer arranges annual leave, and the employee does not agree, the employee shall be paid according to the normal wage.

Article 10 of the Measures for the Implementation of Paid Annual Leave for Employees of Enterprises Article 10 If an employer does not arrange annual leave with the consent of the employee or arranges the number of annual leave days for the employee to be taken less than the number of annual leave days that should be taken, the employer shall pay the employee 300% of the daily wage income for the unused annual leave in the current year, including the salary income paid by the employer to the employee during the normal working period.