Pregnant Female Employees Allowed to Temporarily Suspend the Execution of the Labor Contract for How Long?
How long can pregnant female employees suspend the execution of their labor contracts?
According to Clause 2 Article 138 of the Labor Code 2019 regarding the unilateral termination and suspension of labor contracts by pregnant female employees as follows:
Rights of pregnant female employees to unilaterally terminate or suspend labor contracts
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2. In case of suspension of the execution of the labor contract, the suspension period shall be agreed upon by the employee and the employer but must be at least the period prescribed by the authorized medical facility. If there is no prescription from the authorized medical facility regarding the suspension period, the parties shall agree on the suspension period.
Thus, a pregnant female employee can suspend the execution of the labor contract for a period agreed upon with the employer and consented to, but at least must be as prescribed by the authorized medical facility.
If the medical facility does not prescribe the suspension period for maternity leave, the employee and the employer must agree together on the suspension period for executing the labor contract.
How long can pregnant female employees suspend the execution of their labor contracts?
Do pregnant female employees receive severance allowances when suspending labor contracts?
Article 46 of the Labor Code 2019 stipulates the severance allowance as follows:
Severance allowance
1. When the labor contract is terminated in accordance with Clauses 1, 2, 3, 4, 6, 7, 9, and 10 of Article 34 of this Code, the employer is responsible for paying severance allowance to the employees who have worked regularly for the employer for 12 months or more, at the rate of half a month's salary for each working year, except in cases where the employee is eligible for a pension as stipulated by the law on social insurance and the cases specified at point e of Clause 1 Article 36 of this Code.
2. The working time for calculating severance allowance is the total time the employee has actually worked for the employer minus the time the employee has participated in unemployment insurance as stipulated by the law on unemployment insurance and the time the employee has been paid severance allowance and job loss allowance by the employer.
3. The salary for calculating severance allowance is the average salary of the 06 consecutive months under the labor contract before the employee terminates the contract.
4. The Government of Vietnam shall detail this Article.
In addition, according to Clause 3 Article 8 of Decree 145/2020/ND-CP stipulating severance allowance and job loss allowance as follows:
Severance allowance, job loss allowance
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3. The working time for calculating severance allowance, job loss allowance is the total time the employee has actually worked for the employer minus the time the employee has participated in unemployment insurance as stipulated by the law on unemployment insurance and the time the employee has been paid severance allowance, job loss allowance by the employer, in which:
a) The total time the employee has actually worked for the employer includes: the time the employee has directly worked; the probationary period; the time sent by the employer for training; the time on illness, maternity leave according to the law on social insurance; the time on leave for treatment, functional rehabilitation when suffering from occupational accidents or diseases which the employer pays salary as per the law on occupational safety and hygiene; the time on leave for fulfilling civic obligations as per the law which the employer pays salary; the suspension time not due to the employee's fault; weekly leave according to Article 111, leave with full salary according to Articles 112, 113, 114, Clause 1 Article 115; the time performing duties of the labor representative organization according to Clause 2, Clause 3 Article 176 and the suspension time according to Article 128 of the Labor Code.
b) The time the employee has participated in unemployment insurance includes: the time the employee has participated in unemployment insurance according to the law and the time the employee is not required to participate in unemployment insurance according to the law but is paid by the employer along with the salary an amount equivalent to the employer's contribution to the unemployment insurance fund according to the law on labor and unemployment insurance.
c) The working time for calculating severance allowance and job loss allowance of the employee is calculated by the year (full 12 months); if there are less than or equal to 06 months it shall be counted as half a year, and more than 06 months shall be counted as one year of work.
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Thus, receiving severance allowance only applies to cases of labor contract termination stipulated in Clauses 1, 2, 3, 4, 6, 7, 9, and 10 Article 34 of the Labor Code 2019.
For pregnant female employees suspending the labor contract, they are not entitled to severance allowance.
How is maternity leave for female employees regulated?
Article 139 of the Labor Code 2019 stipulates the maternity leave as follows:
- Female employees are entitled to maternity leave before and after giving birth for a total period of 06 months; the maternity leave period before delivery shall not exceed 02 months.
In case of giving birth to twins or more, from the second child onward, the mother is entitled to an additional one-month leave for each child.
- During the maternity leave period, female employees receive maternity benefits as stipulated by the law on social insurance.
- After the maternity leave period as stipulated in Clause 1 Article 139 of the Labor Code 2019, if needed, female employees can take additional unpaid leave after reaching an agreement with the employer.
- Before the end of the maternity leave period as stipulated in Clause 1 Article 139 of the Labor Code 2019, female employees can return to work if they have taken at least 04 months of rest, but they must notify the employer and obtain consent as well as a certification from an authorized medical facility that early return to work does not harm their health. In this case, besides the salary for the working days paid by the employer, the female employee continues to receive maternity benefits as stipulated by the law on social insurance.
- Male employees whose wives give birth, employees adopting a child under 06 months of age, surrogate female employees, and employees who are intended mothers of a surrogate mother are entitled to maternity benefits as stipulated by the law on social insurance.
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