Can a male employee who still goes to work receive both salary and maternity benefits when his wife gives birth in Vietnam?

Can a male employee who still goes to work receive both salary and maternity benefits when his wife gives birth in Vietnam?

I asked about the case of maternity leave for men when their wife gives birth. If this guy in his company has a wife who gives birth, according to the law, he is entitled to take leave to take care of his wife but does not take leave, can he still enjoy both benefits and salary for working days? Because the law actually still allows them to take leave, their benefits are still paid by insurance, right?

Reply:

Maternity benefit is one of the mandatory social insurance regimes as prescribed in Clause 1, Article 4 of the 2014 Law on Social Insurance.

According to this regulation, male employees currently paying social insurance premiums whose wives give birth to children are entitled to a maternity leave of 5 to 14 working days depending on each case according to Clause 2, Article 34 of the Law on Social Insurance 2014.

Thus, according to the law, taking leave to enjoy maternity benefits when his wife gives birth is a right of male employees who are paying social insurance.

However, if an employee does not use this benefit but still goes to work, he or she cannot receive both salary and maternity benefits corresponding to the days the male employee takes leave when his wife gives birth without taking leave. 

By:

- While the employee is on leave and is entitled to social insurance benefits, the employer does not have to pay the employee's salary. (Clause 2, Article 186 of the 2012 Labor Code - expires from January 1, 2021).

- In contrast, social insurance means the guarantee to fully or partially offset an employee’s income that is reduced or lost due to his/her sickness, maternity, occupational accident, occupational disease, retirement or death, on the basis of his/her contributions to the social insurance fund. (Clause 1, Article 3 of the Law on Social Insurance 2014).

Thus, for male employees of your company who work during the days when their wife gives birth, they are only entitled to salary and not maternity benefits in Vietnam. Due to the fact that this employee did not take leave and did not lose income from salaries during those days, the insurance agency will not process the application for maternity benefits if the company works for the employee.

How many days off can a female employee who has a miscarriage in the 4th month take in Vietnam?

My wife unfortunately had a miscarriage when she was 4 months pregnant. So I would like to ask, how many days is the maximum number of days my wife can take leave from work to enjoy maternity benefits?

Reply:

Pursuant to Clause 1, Article 33 of the 2014 Law on Social Insurance stipulates:

1. When getting miscarriage, abortion, stillbirth or pathological abortion, a female employee may take a maternity leave as prescribed by a competent health establishment. The maximum leave period is:

a/ 10 days, for pregnancy of under 5 weeks;

b/ 20 days, for pregnancy of between 5 weeks and under 13 weeks; c/ 40 days, for pregnancy of between 13 weeks and under 25 weeks; d/ 50 days, for pregnancy of 25 weeks or more.

If your wife is 4 months pregnant, it can be speculated that the pregnancy is about 16 or 17 weeks old. Comparing with the above regulations in Vietnam, your wife's case will fall under the regulations at Point c, the pregnancy is from 13 weeks to under 25 weeks of age. So in your wife's case, she will be entitled to a maximum of 40 days of maternity leave.

Can businesses force employees to work during maternity leave in Vietnam?

Please ask: On October 25, 2020, I will take 6 months of maternity leave to give birth. But due to the nature of my job as an accountant, my agency has no one to replace me, so I have to work as an accountant during my 6-month maternity leave. So, may I ask, in addition to the maternity benefits paid by social insurance, if I do accounting work for an agency, will I still receive a salary? Will my company be fined for doing so?

Reply:

According to current labor laws and social insurance laws, female employees who are eligible for maternity benefits are entitled to take maternity leave for a period of 6 months.

Specifically, Clause 1, Article 34 of the Law on Social Insurance 2014 stipulates:

Article 34. Leave period for childbirth

1. Female employees are entitled to a 6-month leave before and after childbirth under the maternity benefits. For a female employee who gives birth to twins or more infants, she is entitled to an additional leave of 1 month for each infant from the second.

The maternity leave period before childbirth must not exceed 2 months.

Thus, current law recognizes the right of female employees to take maternity leave when giving birth in Vietnam. This means that during these 6 months, female employees do not have to work or receive salary from businesses, agencies or organizations, but are entitled to a one-time maternity allowance and benefits corresponding to the leave period. 

In case your business, due to the actual situation, does not have enough personnel, forcing you to do accounting work during your maternity leave in Vietnam, you must receive both the salary for the job you are undertaking and the enjoy full maternity benefits.

Current law only allows female employees on maternity leave to return to work early if they are healthy but must have taken at least 4 months of maternity leave in Vietnam. However, there is no mechanism to punish businesses for accepting employees on maternity leave to return to work earlier than prescribed or for forcing employees to work during maternity leave. Therefore, you can base on the regulations on your right to maternity benefits and your health situation to request the company to arrange staff to work on your behalf during your maternity benefits.

Best regards!