Over 3 months of convalescence after sickness until now, the company has not submitted a dossier to the social insurance agency, is it illegal?
Convalescence and health rehabilitation after sickness according to the law of Vietnam
Pursuant to Article 29 of the Law on Social Insurance 2014 of Vietnam on convalescence and health rehabilitation after sickness:
- An employee who has taken leave under the sickness benefits for the full number of days in a year prescribed in Article 26 of this Law, but whose health has not yet recovered within 30 days after return to work, is entitled to a leave of between 5 days and 10 days in a year for convalescence and health rehabilitation.
The leave period for convalescence and health rehabilitation is inclusive of public holidays, New Year holidays and weekends. The leave period which lasts from the end of a year to the following year shall be counted for the previous year.
- The number of days of a leave for convalescence and health rehabilitation shall be jointly decided by the employer and grassroots Trade Union Executive Committee, or by the employer in case the grassroots Trade Union has not yet been set up, specifically as follows:
+ 10 days at most, for employees whose health has not yet recovered after suffering a disease requiring long-term treatment;
+ 7 days at most, for employees whose health has not yet recovered after undergoing an operation;
+ 5 days, in other cases.
- The per-diem allowance for convalescence and health rehabilitation after sickness must equal 30% of the basic salary.
Settlement of enjoyment of convalescence and health rehabilitation after sickness
What are allowance levels of the sickness benefits?
Pursuant to Article 28 of the Law on Social Insurance 2014 of Vietnam on allowance levels of the sickness benefits:
- Employees entitled to the sickness benefits prescribed in Clause 1, or at Point a, Clause 2, Article 26, or in Article 27, of this Law are entitled to a monthly allowance equal to 75% of the salary of the month preceding their leave on which social insurance premiums are based.
An employee who has just started working or who previously paid social insurance premiums and then ceased working for a certain time and has to take leave under the sickness benefits right in the first month after return to work, is entitled to an allowance equal to 75% of the salary of that month on which social insurance premiums are based.
- For employees who continue enjoying the sickness benefits prescribed at Point b, Clause 2, Article 26 of this Law, the allowance must equal:
+ 65% of the salary of the month preceding their leave on which social insurance premiums are based, if they have paid social insurance premiums for full 30 years or more;
+ 55% of the salary of the month preceding their leave on which social insurance premiums are based, if they have paid social insurance premiums for between full 15 years and under 30 years;
+ 50% of the salary of the month preceding their leave on which social insurance premiums are based, if they have paid social insurance premiums for under 15 years.
- For employees entitled to the sickness benefits prescribed in Clause 3, Article 26 of this Law, the allowance must equal 100% of the salary of the month preceding their leave on which social insurance premiums are based.
- The per-diem sickness allowance must equal the monthly sickness allowance divided by 24 days.
Over 3 months of convalescence after sickness until now, the company has not submitted a dossier to the social insurance agency, is it illegal?
Pursuant to Article 103 of the Law on Social Insurance 2014 of Vietnam:
“Article 103. Settlement of convalescence and health rehabilitation allowance after sickness or maternity leave
1. Within 10 days after the date an employee fully satisfies the conditions for enjoying the convalescence and health rehabilitation allowance after sickness or maternity leave, the employer shall make a list of employees and submit it to the social insurance agency.
2. Within 10 days after receiving a complete and valid dossier, the social insurance agency shall settle the social insurance regime for and pay the convalescence and health rehabilitation allowance to employees; or issue a written reply clearly stating the reason for its refusal to settle the regime.”
Besides, according to the regulations in Article 116 of the Law on Social Insurance 2014 of Vietnam:
“Article 116. Delayed settlement of enjoyment of social insurance regimes
1. If the settlement of enjoyment of social insurance regimes is delayed after the time limit specified in Clause 1 or 2, Article 102, Clause 1, Article 103, Clause 1 or 2, Article 110, or Clause 1 or 2, Article 112, of this Law, a written explanation shall be made.
2. In case the submission of dossiers and settlement of enjoyment of social insurance regimes are delayed after the prescribed time limits, thus damaging the lawful rights and interests of eligible beneficiaries, compensation shall be paid in accordance with law, except cases where such delay is due to the fault of employees or their relatives.”
Thus, according to the above regulations, within 10 days from the date you are eligible for convalescence after sickness, your company must make a list and submit it to the social insurance agency. Therefore, you take leave for convalescence after your sickness at the end of January 2022, but up to now, in April 2022, the thing that your company has not yet submitted your convalescence document to the social insurance agency is incorrect.
If your company is late to submit your convalescence document after sickness, the company must explain in writing about the late submission of the dossier to the social insurance agency, you will still be entitled to the post-sickness benefits. If the thing that your company is late to submit your convalescence document after sickness damages your legitimate rights and interests, your company must compensate for the damage in accordance with the law.
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