Vietnam: How long will pregnant female employees have their employment contracts postponed?
Are pregnant female employees entitled to severance allowance when suspending the employment contracts in Vietnam?
Article 46 of the 2019 Labor Code stipulates severance benefits as follows:
Severance allowance
1. In case an employment contract is terminated as prescribed in Clauses 1, 2, 3, 4, 6, 7, 9 and 10, Article 34 of this Code, the employer is responsible for paying severance allowance to the employee who has worked on a regular basis for a period of at least 12 months. Each year of work will be worth half a month’s salary, except for the cases in which the employee is entitled to receive retirement pension as prescribed by social insurance laws, and the cases specified in Point e Clause 1 Article 36 of this Labor Code.
2. The qualified period of work as the basis for calculation of severance allowance shall be the total period during which the employee actually worked for the employer minus the period over which the employee participated in the unemployment insurance in accordance with unemployment insurance laws and the period for which severance allowance or redundancy allowance has been paid by the employer.
3. The salary as the basis for calculation of severance allowance shall be the average salary of the last 06 months under the employment contract before the termination.
4. The Government shall elaborate this Article.
In addition, according to the provisions of Clause 3, Article 8 of Decree 145/2020/ND-CP, regulations on severance allowance and redundancy allowance are as follows:
Severance allowance, redundancy allowance
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3. The employment period as the basis for calculation of severance allowance or redundancy allowance is the total period over which the employee has worked for the employer in reality (hereinafter referred to as “actual work period”) minus (-) the period over which the employee participates in unemployment insurance and the period over which the employer pays severance allowance or redundancy allowance. Where:
a) The actual work period includes: actual work period; probation period; employer-provided training period; sick leave and maternal leave according to social insurance laws; paid recovery period after an occupational accident or disease according to occupational hygiene and safety laws; paid leave period for fulfillment of citizen’s duties; work suspension period through no fault of the employee; weekly breaks prescribed in Article 111, paid leave prescribed in Article 112, Article 113, Article 114, Clause 1 Article 115; period over which the employee has to perform duties of the employee representative organization prescribed in Clause 2 and Clause 3 Article 176; and work suspension period prescribed in Article 128 of the Labor Code.
b) The period over which the employee participates in unemployment insurance includes: the period over which the employee participates in unemployment insurance and the period over which participation in unemployment insurance is not mandatory but the employer has paid in addition to salary an extra amount equal to the unemployment insurance premium according to labor and unemployment insurance laws.
c) The work period as the basis for calculation of severance allowance or redundancy allowance shall be expressed as years (full 12 months); If the number of months of an incomplete year is 06 months or less, it will be considered ½ year; if the number of months of an incomplete year is more than 06 months, it will be considered 01 year.
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Thus, severance allowance only applies to cases of employment contract termination specified in Clauses 1, 2, 3, 4, 6, 7, 9 and 10, Article 34 of the 2019 Labor Code.
Accordingly, in the case of pregnant female employees who suspend their contracts, they are not entitled to severance pay.
Vietnam: How long will pregnant female employees have their employment contracts postponed?
Vietnam: How long will pregnant female employees have their employment contracts postponed?
According to Clause 2, Article 138 of the 2019 Labor Code, the right to unilaterally terminate or suspend the employment contract of pregnant female employees is as follows:
The right of pregnant female employees to unilaterally terminate or suspend their employment contracts
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2. In case of suspension of the employment contract, the suspension period shall be agreed by the employer and the employee and must not be shorter than the period specified by the health facility. If the rest period is not specified by the health facility, both parties shall negotiate the suspension period.
Thus, pregnant female employees are allowed to temporarily suspend the employment contract for a period of time as agreed by the employer and the employee and must not be shorter than the period specified by the health facility.
If the rest period is not specified by the health facility, both parties shall negotiate the suspension period.
What are the regulations on maternity leave in Vietnam?
Article 139 of the 2019 Labor Code stipulates maternity leave as follows:
- A female employee is entitled to 06 months of prenatal and postnatal leave; the prenatal leave period shall not exceed 02 months.
In case of a multiple birth, the leave shall be extended by 01 month for each child, counting from the second child.
- During maternity leave, the female employee is entitled to maternity benefits as prescribed by social insurance laws.
- After the maternity leave stipulated in Clause 1 of Article 139 of the 2019 Labor Code expires, if so demanded, the female employee may be granted an additional unpaid leave under terms agreed upon with the employer.
- The female employee may return to work before the expiry of her statutory maternity leave stipulated in Clause 1 of Article 139 of the 2019 Labor Code after she has taken at least 04 months of leave, provided she has obtained a confirmation from a competent health facility that the early resumption of work does not adversely affect her health, the employer receives a prior notice of the early resumption and agrees to the early resumption. In this case, besides the salary of the working days, which is paid by the employer, the female employee shall continue to receive the maternity allowance in accordance with social insurance laws.
- A male employee whose wife gives birth, an employee who adopts a child under 06 months of age, a female employee who becomes a surrogate mother shall be entitled to maternity leave in accordance with social insurance laws.
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