问 题
客户咨询，劳动者达到法定退休年龄的当年，能否享受带薪年休假？如果可以，如何确定带薪年休假的时间？
结 论
劳动者享受带薪年休假的条件是“连续工作满12个月以上”，且在不享受带薪年休假的法定情形中，并无劳动者达到法定退休年龄这一条。故劳动者达到法定退休年龄的当年，一般可以享受带薪年休假。劳动者在达到退休年龄时的带薪年休假时间的计算公式为：（当年度在本单位已过日历天数÷365天）×劳动者本人全年应当享受的年休假天数-当年度已安排年休假天数。例如，劳动者累计工作已满20年，其退休日期为2023年5月31日，在2023年该劳动者还没有享受带薪年休假。那么其在2023年可以享受的带薪年休假为6天。计算公式为：（151÷365）×15-0≈6天。
分 析
（一）劳动者达到法定退休年龄的当年，可以享受带薪年休假
《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。”第四条规定，“职工有下列情形之一的，不享受当年的年休假：（一）职工依法享受寒暑假，其休假天数多于年休假天数的；（二）职工请事假累计20天以上且单位按照规定不扣工资的；（三）累计工作满1年不满10年的职工，请病假累计2个月以上的；（四）累计工作满10年不满20年的职工，请病假累计3个月以上的；（五）累计工作满20年以上的职工，请病假累计4个月以上的。”《企业职工带薪年休假实施办法》第三条则进行了限缩性规定，“职工连续工作满12个月以上的，享受带薪年休假。”将《条例》规定的“累计工作年限”变更为“连续工作年限”，实质上是对劳动者休假权益在《条例》规定基础上的限缩性规定。第七条规定，“职工享受寒暑假天数多于其年休假天数的，不享受当年的年休假。确因工作需要，职工享受的寒暑假天数少于其年休假天数的，用人单位应当安排补足年休假天数。”从前述法条的规定可以看出，劳动者享受带薪年休假的条件是“连续工作满12个月以上”（且不具有前述法条规定的不享受带薪年休假的情形），与劳动者是否达到法定退休年龄没有关系。同时，可以作一个延伸了解，根据国务院法制办对《关于〈职工带薪年休假条例〉有关问题的请示》的复函以及人力资源和社会保障部办公厅关于《企业职工带薪年休假实施办法》有关问题的复函的内容，“连续工作满12个月以上”既包括劳动者在同一用人单位连续工作满12个月以上的情形，也包括劳动者在不同用人单位连续工作满12个月以上的情形。
（二）劳动者达到退休年龄时的带薪年休假时间的计算公式为：（当年度在本单位已过日历天数÷365天）×劳动者本人全年应当享受的年休假天数-当年度已安排年休假天数
《企业职工带薪年休假实施办法》第十二条第一、第二款规定，“用人单位与职工解除或者终止劳动合同时，当年度未安排职工休满应休年休假的，应当按照职工当年已工作时间折算应休未休年休假天数并支付未休年休假工资报酬，但折算后不足1整天的部分不支付未休年休假工资报酬。前款规定的折算方法为：（当年度在本单位已过日历天数÷365天）×职工本人全年应当享受的年休假天数-当年度已安排年休假天数。”《中华人民共和国劳动合同法实施条例》第二十一条规定，“劳动者达到法定退休年龄的，劳动合同终止。”根据前述法条的规定，劳动者达到法定退休年龄的劳动合同终止，其达到退休年龄办理退休手续时所享受的带薪年休假天数，应当按照前述法条的规定进行折算。
（三）用人单位未在劳动者退休前安排劳动者享受带薪年休假的，应当向劳动者支付未休年休假工资报酬，逾期不支付的，还应当向劳动者支付赔偿金
《职工带薪年休假条例》第五条第三款规定，“单位确因工作需要不能安排职工休年休假的，经职工本人同意，可以不安排职工休年休假。对职工应休未休的年休假天数，单位应当按照该职工日工资收入的300%支付年休假工资报酬。”《企业职工带薪年休假实施办法》第十条规定，“用人单位经职工同意不安排年休假或者安排职工年休假天数少于应休年休假天数，应当在本年度内对职工应休未休年休假天数，按照其日工资收入的300%支付未休年休假工资报酬，其中包含用人单位支付职工正常工作期间的工资收入。用人单位安排职工休年休假，但是职工因本人原因且书面提出不休年休假的，用人单位可以只支付其正常工作期间的工资收入。”第十二条第一款规定，“用人单位与职工解除或者终止劳动合同时，当年度未安排职工休满应休年休假的，应当按照职工当年已工作时间折算应休未休年休假天数并支付未休年休假工资报酬，但折算后不足1整天的部分不支付未休年休假工资报酬。”根据前述法条对劳动者休假权益在付酬标准上的限缩性规定，用人单位除了向劳动者支付正常工作期间的工资收入外，其还需按劳动者日工资收入的200%×劳动者应休未休年休假天数得出的金额额外向劳动者支付未休年休假工资报酬。例如，劳动者在退休当年可以享受的带薪年休假为6天，日工资收入为300元，用人单位已经向劳动者支付了正常工作期间的工资收入。若用人单位在劳动者退休当年没有安排其享受带薪年休假的，则应当额外向劳动者支付3600元未休年休假工资报酬。计算公式为：300元/天×2倍×6天=3600元。
上述观点，在全国范围内，均有案例支撑。
在（2015）弥民一初字第3号案件中，弥勒市法院认为：“根据《中华人民共和国劳动法》第四十五条，《职工带薪年休假条例》第三条、第五条规定，职工连续工作满一年以上的，享受带薪年休假，对职工应休未休的年休假天数，单位应当按照该职工日工资收入的300%支付年休假工资报酬。自2008年1月1日带薪年休假条例施行以来，扣除已领取工资，按照应休年休假天数应当支付200%的工资。”本案经红河州中级人民法院二审，判决驳回上诉、维持原判。
在（2020）粤13民终358号案件中，惠州市中级人民法院认为：“恒泰公司在蒋治中工作期间已经100%支付了工资，因此，恒泰公司应支付蒋中治2017年1月1日至2019年3月18日未休年休假工资差额为10637.06元（5258.09元/月÷21.75天×22天×200%）。”
在（2018）京0105民初93813号案件中，朝阳区人民法院认为：“嗨富通公司主张彭洪汇在职期间年假已休，就其主张未向本院举证，本院难以采信，本院采信彭洪汇在职期间年假未休的主张。经本院核算，嗨富通公司应向彭洪汇支付2015年11月2日至2017年12月15日期间未休年假工资18786.21元【（25000-加班补贴2300）÷21.75×9×200%】。”本案经北京市第三中级人民法院二审，判决驳回上诉、维持原判。
北京市人力资源和社会保障局在其发布的2016年劳动争议十大典型案例之九“关某与某酒店经济补偿金纠纷案”的案件评析部分指出，对于劳动者应休未休年休假天数，用人单位应按照劳动者日工资收入的300%支付未休年休假工资报酬，其中包含用人单位支付劳动者正常工作期间的工资收入。本案中，某酒店已向关某支付了正常出勤期间的工资，故只需按照关某未休年休假天数向其额外支付2倍的工资作为补偿。
同时，上述观点，在部分省份有法条支撑。
重庆市劳动和社会保障局在关于贯彻《企业职工带薪年休假实施办法》有关问题的通知第七条指出，“《办法》第十二条规定，用人单位与职工解除或者终止劳动合同时，当年度未安排职工休满应休年休假的，‘应当按照职工当年已工作时间折算应休未休年休假天数并支付未休年休假工资报酬’，即在支付职工正常工作期间的工资收入基础上，用人单位另外再支付200%的未休年休假工资报酬。”
新疆生产建设兵团劳动和社会保障局在关于贯彻执行《企业职工带薪年休假实施办法》的通知第四条指出，“用人单位应按职工未休年假的天数，按日支付其工资报酬。在支付职工未休假工资报酬时，应在支付职工正常工作的工资收入的基础上，再按日工资200%的标准计算支付其未休年休假的工资报酬。”
Helper | Can Employees Be Entitled to Paid Annual Leave in the Year When They Reach the Statutory Retirement Age?
Issue
The customer asked some questions, that “Can employees be entitled to paid annual leave in the year when they reach the statutory retirement age? If it can, how to determine the time of paid annual leave?”
Conclusion
The condition for employees are entitled to paid annual leave is “work continuously for more than 12 months”, and the employee has reached the statutory retirement age is not one of the legal circumstances that do not be entitled to paid annual leave. Therefore, employees who reach the statutory retirement age in the year, generally can be entitled to paid annual leave. The calculation formula for the annual paid leave time of employees when they reach the retirement age is: (the calendar days that the employee has spent in the employing entity/365 )× the days of annual leave due in the year – the days of annual leave that have been taken in the year.For example, if an employee has worked for 20 years, his retirement date will be May 31, 2023, and he did not take paid annual leave in 2023. So he will be entitled to six days of paid annual leave. The calculation formula is: (151÷365) ×15-0≈6 days.
Analysis
1.Employees are entitled to paid annual leave in the year when they reach the statutory retirement age.
Article 3 of the Regulation on Paid Annual Leave for Employees stipulates that “An employee has served one full year but less than 10 years accumulatively, he is entitled to five days of annual leave. If he has served 10 full years but less than 20 years, annual leave is 10 days. If he has served for 20 full years, annual leave is 20 days.” Article 4 stipulates that “An employee is not entitled to annual leave for current year if he is under any of the following circumstances: a) The employee is entitled to summer vacation and winter vacation in accordance with the law and the number of days of such vacations is more than that of his annual leave; b) The employee has taken more than days of private affair leave accumulatively and his unit does not deduct wages in accordance with provisions; c) The employee has served one full year accumulatively but less than 10 years and has taken more than two months of sick leave accumulatively; d) The employee has served 10 full years accumulatively but less than 20 years and has taken more than three months of sick leave accumulatively; e) The employee has served more than 20 full years and has taken more than four months of sick leave accumulatively. ” Article 3 of the Implementation Measures for the Paid Annual Leave for Employees of Enterprises provides limit provision, that “Employees who have worked continuously for one year or more are entitled to paid annual leave.” Changing the “accumulated working years” specified in the Regulation on Paid Annual Leave for Employees to “continuous working years” is in essence a restrictive provision on employees’ vacation rights and interests based on the provisions of the Regulation on Paid Annual Leave for Employees. Article 7 stipulates that “An employee who has taken winter and summer vacations more than the annual leave in a year is not entitled to the annual leave of the year. If the days of winter and summer vacations taken by the employee are less than the days of paid annual leave, for work reasons, the employing entity shall grant to him the untaken annual leave days.” From the above-mentioned provisions of the law, it can be seen that the condition for employees are entitled to paid annual leave is “work continuously for more than 12 months” (in addition to the above-mentioned circumstances that are not entitled to paid annual leave), and it is not related to whether employees have reached the statutory retirement age. At the same time, we can make a further understanding, according to the reply letter from the Legislative Affairs Office of the State Council on the Request for Instructions on the Regulations on Annual Paid Leave for Employees and the reply letter from the General Office of the Ministry of Human Resources and Social Security on the issues related to the Implementation Measures for Annual Paid Leave for Enterprise Employees that “work continuously for more than 12 months”, includes not only the case where the employee has worked continuously for more than 12 months in the same employing entity, but also the case where the employee has worked continuously for more than 12 months in different employing entities.
2.The calculation formula for the annual paid leave time when the employee reaches the retirement age is: (the calendar days that the employee has spent in the employing entity/365)×the days of annual leave due in the year–the days of annual leave that have been taken in the year.
Article 12, paragraphs 1 and 2 of the Implementation Measures for the Paid Annual Leave for Employees of Enterprises provides that “When employing entity dissolves or terminates the employment contract with an employee, if the employee has annual leave time due but not taken in the year, the employing entity shall calculate the days of the annual leave due but not taken according to the employee’s working time in the year and pay him for those days if the result is not less than one day. The calculation formula shall be: (the calendar days that the employee has spent in the employing entity/365) × the days of annual leave due in the year – the days of annual leave that have been taken in the year.” Article 21 of the Regulation on the Implementation of the Employment Contract Law that “An employment contract shall be terminated when an employee reaches the statutory age for retirement.” According to the provisions of the above-mentioned law, if the employment contract of an employee reaches the statutory retirement age is terminated, the number of days of paid annual leave enjoyed by employees when they reach retirement age and go through retirement procedures shall be commuted in according to the provisions of the aforementioned law.
3.If the employing entity does not arrange for the employee to take paid annual leave before their retirement, the employing entity shall pay employee the wage compensation for the untaken annual leave, and if the payment is not made in time, the employing entity shall also pay compensation to the employee.
Article 5, paragraph 3 of the Regulation on Paid Annual Leave for Employees provides that “A unit that cannot arrange for annual leave for employees due to work needs, it is allowed to do so as long as it gets the consent of the employee. As for the annual leave time due and not taken by the employee, the unit shall pay the employee 300% of his daily wage income for each day of the annual leave due and not taken.” Article 10 of the Implementation Measures for the Paid Annual Leave for Employees of Enterprises stipulates that “Employing entity does not give annual leave to an employee or gives him days of annual leave less than the days of annual leave due upon the consent of the employee, it shall pay the employee 300% of his daily wage income for each day of the annual leave due and not taken in the year, which includes the wage income to be paid by the employing entity to the employee per day in normal working days. Employing entity shall give annual leave to its employees, but if any employee gives a writing notice of not taking annual leave on his own will, the employing entity is allowed to pay for the employee’s normal working days.” Article 12, paragraph 1 provides that “Employing entity dissolves or terminates the employment contract with an employee, if the employee has annual leave time due but not taken in the year, the employing entity shall calculate the days of the annual leave due but not taken according to the employee’s working time in the year and pay him for those days if the result is not less than one day.” According to the limit provision on the payment standard of employees’ vacation rights and interests in the above-mentioned law, the employing entity in addition to paying the wage income during the normal working period to the employees, it also needs to pay the employee additional pay for the untaken annual leave at the amount derived from 200% of the employee's daily wage × the number of days of untaken annual leave that the employee should take. For example, the employee is entitled to 6 days of paid annual leave in the year of retirement, and the daily wage income is 300 RMB, the employing entity has paid the employee the wage income for the normal working period. If the employing entity does not arrange the employee to take the paid annual leave in the year of retirement, the employee should be paid 3600 RMB for untaken annual leave pay. The calculation formula is: 300 RMB/day × 2 times × 6 days = 3600 RMB.
The above views are supported by cases in the whole country.
In Case (2015) Mi Civil 1 First Trail No. 03, the People's Court of Mile held that “According to Article 45 of the Labor Law and Articles 3 and 5 of the Regulations on Annual Paid Leave for Employees stipulates that an employee who has worked continuously for more than one year shall be entitled to paid annual leave, and for the number of days of annual leave that the employee should take but has not taken, the unit shall pay the annual leave wage compensation at 300% of the employee's daily wage income. Since January 1, 2008, when the regulations on paid annual leave came into effect, after deducting the wage already received, 200% of the wage shall be paid according to the number of days of annual leave due.” The case was heard by the Intermediate People’s Court of Honghe Prefecture in the second instance, and the appeal was rejected and the original judgment was upheld.
In Case (2020) Yue 13 Civil Final No. 358, Intermediate People's Court of Huizhou held that “Hengtai Company has paid 100% of the wage during Jiang Zhizhong’s working period, therefore, Hengtai Company should pay Jiang Zhizhong the difference of untaken annual leave wage from January 1, 2017 to March 18, 2019 as 10,637.06 yuan (5,258.09 yuan / month ÷ 21.75 days × 22 days × 200%).”
In Case (2018) Jing 0105 Civil First Trail No. 93813, the Chaoyang District People’s Court held that "Hi Futong Company claimed that Peng Honghui had taken annual leave during his employment and failed to prove to the court regarding his claim, which was difficult to be accepted by the court, so the court accepted Peng Honghui’s claim that he had not taken annual leave during his employment. After the first instance court's accounting, Hi Futong Company should pay Peng Honghui RMB 18,786.21 [(25,000 - overtime allowance 2,300) ÷ 21.75 × 9 × 200%] for the untaken annual leave during the period from November 2, 2015 to December 15, 2017.” The case was adjudicated by the Beijing Third Intermediate People’s Court in the second instance, and the appeal was rejected and the original judgment was upheld.
The Beijing Human Resources and Social Security Bureau pointed out in the case review section of its 2016 Top Ten Typical Cases of Labor Disputes No. 9：“the Dispute Between Somebody Guan and a Hotel's Economic Compensation” that, for the number of days of untaken annual leave that an employee should take, the employing entity should pay the untaken annual leave wage compensation at 300% of the employee’s daily wage income, which includes the employing entity to pay the employee’s wage income during normal work. In this case, the hotel has already paid Somebody Guan the wages during the period of normal attendance, so it only needs to pay him 2 times of the wages as compensation for the number of days of untaken annual leave.
At the same time, the above view has the support of the law in some provinces.
Article 7 of the notice on the Implementation Measures for Paid Annual Leave for Enterprise Employees of the Chongqing Labor and Social Security Bureau points out that “Article 12 of the Measures stipulates that when the employing entity dissolves or terminates the labor contract with the employee, if the employee has not taken the full amount of annual leave due in the current year, ‘the employee shall be paid for the untaken annual leave in accordance with the time when he has worked in the current year’. In other words, the employing entity will pay 200% on the basis of the employee’s wage income during normal working period as the pay for untaken annual leave.”
Article 4 of the notice on the Implementation Measures for Paid Annual Leave for Enterprise Employees of Xinjiang Production and Construction Corps Labor and Social Security Bureau points out that “The employing entity shall pay the employee’s wage remuneration for the number of days of untaken annual leave on a daily basis. When paying the wage remuneration for the employee’s untaken leave, the wage remuneration for the employee’s untaken annual leave shall be calculated on the basis of 200% of the daily wage on top of the wage income of the employee’s normal work.”
本期撰稿：刘元杰
本期译稿：解 佳、张 川
本期编辑：尤 喆
