Is it legal to sign the contract with elderly employees in Vietnam?

Hello, Lawnet would like to answer the following:

1. Regulations on elderly employees in Vietnam

According to Clause 2, Article 169 of the Labor Code 2019, the retirement ages are as follows:

Article 169. Retirement ages

Retirement ages of employees in normal working conditions shall be gradually increased to 62 for males by 2028 and 60 for females in 2035.

From 2021, the retirement ages of employees in normal working conditions shall be 60 yeas 03 months for males and 55 years 04 months for females, and shall increase by 03 months for males and 04 months for females after every year.

Thus, from 2021, the retirement age for male employees is 60 years and 3 months and 55 years and 4 months for female employees. After that, each year increases by 03 months for male employees and 04 months for female employees.

Under normal working conditions adjusted according to the roadmap, the retirement age of male employees is full 62 years (in 2028) and female employees is 60 years old (2035).

Regarding elderly employees, as defined in Article 148 of the Labor Code 2019, as follows:

Article 148. Elderly employees

An elderly employee is a person who continues working after the age stipulated in Clause 2 Article 169 of this Labor Code.

Elderly employees are entitled to negotiate with their employer on reduction of reduce their daily working hours or to work on a part-time basis.

Employers are encouraged by the State to assign works that are suitable for elderly employees in order to uphold their right to work and ensure efficient utilization of human resources.

Thus, those who continue to work after the above retirement age are elderly workers. Elderly employees are entitled to negotiate with their employers to shorten their daily working hours or apply part-time working regimes.

2. Is it possible to sign the contract with elderly employees?

According to Article 149 of the Labor Code 2019, the employment of elderly employees is regulated as follows:

Article 149. Employment of elderly people

When an elderly person is employed, both parties may agree on conclusion of multiple fixed-term employment contracts.

In case a person who is receiving retirement pension under the Law on Social Insurance enters into a new employment contract, he/she shall receive salary and other benefits prescribed by law and the employment contract in addition to the benefits to which they are entitled under the pension scheme.

Employer must not assign elderly employees to do laborious, toxic or dangerous works, or highly laborious, toxic or dangerous works that are harmful to their health, unless safety is ensured.

Employers are responsible for taking care of the health of elderly employees at the workplace.

Thus, the use of elderly workers is permitted by law. However, when employing elderly workers, the following issues should be kept in mind:

- First, the employer is allowed to sign a definite-term labor contract many times. Normal employees are only permitted to enter into a definite-term labor contract a maximum of twice.

- Second, in the event that safe working conditions are not guaranteed, employers must not employ elderly employees to do heavy, hazardous, or dangerous occupations or jobs, or especially heavy, hazardous, or dangerous jobs that adversely affect such a person's health. In case of violation, the employer may be fined from 10 to 15 million VND (according to Article 30 of Decree 28/2020/ND-CP).

- Third, have the responsibility to care for the health of elderly workers at work.

- Fourth, must pay insurance premiums for elderly employees who have not yet received their monthly pension but are working under labor contracts for 01 month or more.

- Fifth, for elderly employees who are enjoying pensions, the employer is responsible for paying an additional amount at the same time as the salary payment period to the employee in an amount equivalent to the level of payment of compulsory social insurance, health insurance, and unemployment insurance for employees (Clause 3, Article 168 of the Labor Code 2019).

- Sixth, when requesting elderly employees to work overtime, the conditions specified in Clause 2, Article 107 of the Labor Code 2019 must be met:

Article 107. Overtime work

An employer has the right to request an employee to work overtime when all of the following conditions are met:

a) The employee agrees to work overtime;

b) The number of overtime working hours of the employee does not exceed 50% of the normal working hours in 01 day; in case of weekly work, the total normal working hours plus overtime working hours shall not exceed 12 hours in 01 day, and 40 hours in 01 month;

c) The total overtime working hours do not exceed 200 hours in 01 year, except for the cases specified in Clause 3 of this Article.

Best regard!

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