Annual leave: length, schedule and holiday pay

How long is the basic holiday?

The general rule is 28 calendar days (TLS § 55) [1]. The national holiday and public holidays (rahvuspüha, riigipühad) are not counted as part of the basic holiday (TLS § 54 lg 3) [4]: if a public holiday falls during your holiday, the holiday is extended by that day. The law provides a longer basic holiday for:

• minor employees – 35 calendar days (TLS § 56) [5];
• employees with partial or no work capacity established under the Work Ability Allowance Act (töövõimetoetuse seadus) – 35 calendar days (TLS § 57) [6];
• education workers – up to 56 calendar days; the list of positions and the length of holiday are set by a Government regulation (TLS § 58 lg 1 and 2) [7].

Basic holiday is granted for time worked (TLS § 68 lg 1) [8]. Besides time worked, this includes, among other things, time of temporary incapacity for work and time on holiday, except parental leave (vanemapuhkus) and unpaid leave agreed by the parties (TLS § 68 lg 2) [8]. For each calendar year worked, the full basic holiday is due; in the year work starts, it is calculated in proportion to the time worked (TLS § 68 lg 3 and 4) [8].

How is the time of the holiday set?

The employer sets the time of the basic holiday, taking into account the employees' wishes insofar as they can reasonably be reconciled with the interests of the business (TLS § 69 lg 1) [2]. The employer draws up a holiday schedule for each calendar year and makes it known to the employee during the first quarter (TLS § 69 lg 2) [2].

• For holiday not in the schedule, the employee notifies the employer 14 calendar days in advance in a form that can be reproduced in writing (TLS § 69 lg 3) [2].
• The schedule may be changed by agreement between the employer and the employee (TLS § 69 lg 4) [2].
• The right to demand basic holiday at a suitable time belongs, for example, to a parent raising a child under seven, and to a parent raising a child aged seven to ten during the child's school holidays (TLS § 69 lg 7 p 3 and 4) [2].

The employer may interrupt or postpone a holiday because of an unforeseen, essential operational necessity; the employer compensates the resulting costs and must grant the unused part of the holiday (TLS § 69 lg 5) [2]. The employee may interrupt, postpone or end the holiday early for important personal reasons, in particular temporary incapacity for work, and must inform the employer at the first opportunity (TLS § 69 lg 6) [2].

Can the holiday be split, and what happens to unused holiday?

Basic holiday must be used during the calendar year. It is granted in parts only by agreement of the parties; at least 14 calendar days must be used in one go, and the employer may refuse to split the holiday into parts shorter than seven days (TLS § 68 lg 5) [8]. The unused part is carried over to the next calendar year (TLS § 68 lg 5) [8].

The claim for basic holiday expires one year after the end of the calendar year for which the holiday is calculated; the limitation period is suspended, among other things, during maternity, paternity, adoptive and parental leave (TLS § 68 lg 6) [8]. However, under the case law of the Court of Justice of the European Union, an employee does not lose the right to holiday, or to the money compensation for it, automatically just because they did not apply for it: the employer must prove that it actually enabled the employee to take the holiday and told them in good time that unused holiday would otherwise be lost (cases C-619/16 and C-684/16; this concerns at least the four weeks of holiday guaranteed by EU law).

During the employment contract, holiday cannot be swapped for money: „Kokkulepe puhkuse hüvitamiseks raha või muude hüvedega töölepingu kestuse ajal on tühine.“ [3] (translation: an agreement to compensate holiday with money or other benefits during the employment contract is void; TLS § 70 lg 3). When the employment contract ends, the employer compensates unused, unexpired basic holiday in money (TLS § 71) [9].

How is holiday pay calculated and when is it paid?

Holiday pay is calculated under the conditions and procedure for paying the average wage set by the Government (TLS § 70 lg 1; TLS § 29 lg 8) [3] [10]. That regulation is called Keskmise töötasu maksmise tingimused ja kord (conditions and procedure for paying the average wage):

• the average wage is calculated from the wages for the six calendar months preceding the month in which the need for the calculation arises; for holiday pay, that is the month in which the second-to-last working day before the holiday falls (Keskmise töötasu maksmise tingimused ja kord § 2 lg 2) [11]; if the employee has worked for the employer for less than six calendar months, the calendar months for which wages have fallen due are used (Keskmise töötasu maksmise tingimused ja kord § 2 lg 3) [11];
• for the average calendar-day wage, the wages of that period are added up and divided by the number of calendar days in the same period; for basic holiday pay, the national day and public holidays are not counted as calendar days; holiday pay based on calendar days is the average calendar-day wage multiplied by the number of calendar days to be paid (Keskmise töötasu maksmise tingimused ja kord § 4 lg 1, 2, 3 and 5) [12];
• if the employee was paid only a fixed wage for the preceding six calendar months, no average is calculated and the fixed wage is paid (Keskmise töötasu maksmise tingimused ja kord § 1 lg 1¹) [13].

Holiday pay is paid no later than on the second-to-last calendar working day before the holiday starts, unless agreed otherwise; an agreement to pay it later than on the payday following the holiday is void (TLS § 70 lg 2) [3].

What the law says

• „Eeldatakse, et töötaja iga-aastane puhkus on 28 kalendripäeva (põhipuhkus)“ [1] (translation: an employee's annual holiday is presumed to be 28 calendar days (basic holiday); TLS § 55) – a longer holiday may be agreed.
• „Põhipuhkust antakse osadena üksnes poolte kokkuleppel.“ [8] (translation: basic holiday is granted in parts only by agreement of the parties; TLS § 68 lg 5) – the employer cannot split your holiday unilaterally.
• „Vähemalt 14 kalendripäeva puhkust peab töötaja kasutama järjest.“ [8] (translation: the employee must use at least 14 calendar days of holiday in one go; TLS § 68 lg 5).
• „Puhkuste ajakavasse märkimata puhkuse kasutamisest teatab töötaja tööandjale 14 kalendripäeva ette“ [2] (translation: the employee notifies the employer 14 calendar days in advance of holiday not entered in the schedule; TLS § 69 lg 3).

What to do

1. Check the holiday schedule, which the employer must announce during the first quarter of the calendar year (TLS § 69 lg 2) [2].
2. If you want holiday that is not in the schedule, notify your employer 14 calendar days in advance in a form that can be reproduced in writing (TLS § 69 lg 3) [2].
3. If you want to take the holiday in parts, agree on it with your employer and plan at least one part of at least 14 days (TLS § 68 lg 5) [8].
4. Check that holiday pay arrives no later than on the second-to-last calendar working day before the holiday, unless agreed otherwise (TLS § 70 lg 2) [3].
5. A dispute with the employer is resolved under the Employment Contracts Act and the Labour Dispute Resolution Act (töövaidluse lahendamise seadus, TvLS) (TLS § 114) [14]; applying to the labour dispute committee (töövaidluskomisjon) is free of state fees (TvLS § 15) [15].

Frequently asked questions

Can I demand holiday if I have worked less than six months?

By law, an employee may demand holiday once they have worked for the employer for at least six months; in the year work starts, basic holiday is calculated in proportion to the time worked (TLS § 68 lg 4) [8].

Does unused holiday disappear at the end of the year?

Not immediately: the unused part is carried over to the next calendar year (TLS § 68 lg 5) [8]. The claim expires one year after the end of the calendar year for which the holiday is calculated (TLS § 68 lg 6) [8]. However, under EU Court of Justice case law, holiday does not lapse automatically if the employer did not actually enable you to take it and did not warn you that it would be lost (cases C-619/16 and C-684/16).

Can the employer pay money instead of holiday?

Not while the employment contract continues – such an agreement is void (TLS § 70 lg 3) [3]. Unused basic holiday is compensated in money when the employment contract ends (TLS § 71) [9].

What if I fall ill during my holiday?

The employee may interrupt or postpone the holiday because of temporary incapacity for work and claim the unused part once the obstacle has passed or at another agreed time; the employer must be informed at the first opportunity (TLS § 69 lg 6) [2].

Can my employer interrupt my holiday?

The law allows it because of an unforeseen, essential operational necessity, in particular to prevent damage; the employer compensates your costs and must grant the unused part of the holiday (TLS § 69 lg 5) [2].