Can female employees go back to work immediately after giving birth in Vietnam?

Can female employees go back to work immediately after giving birth in Vietnam?

In Article 139 of the 2019 Labor Code, maternity leave is prescribed as follows:

1. 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.

2. During maternity leave, the female employee is entitled to maternity benefits as prescribed by social insurance laws.

3. After the maternity leave stipulated in Clause 1 of this Article expires, if so demanded, the female employee may be granted an additional unpaid leave under terms agreed upon with the employer.

4. The female employee may return to work before the expiry of her statutory maternity leave stipulated in Clause 1 of this Article 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.

5. 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.

Thus, according to the above regulations in Vietnam, female employees can return to work after taking at least 04 months off (maternity leave period) but must notify the employer in advance and get the employer's consent.

If you take leave on October 13 to enjoy maternity benefits and plan to return to work on December 20, you cannot go back to work because at that time you have only been on maternity leave for 2 months and 7 days. If you want to go back to work, the earliest is February 14.

Do female employees who go to work before the expiry of their statutory maternity leave have to pay social insurance premiums in Vietnam?

According to Clause 2, Article 12 of Circular No. 59/2015/TT-BLDTBXH, rate of entitlement to maternity benefits are as follows:

2. The period of time of leave to enjoy the maternity benefits from 14 working days or more in a month is calculated as the time of social insurance payment in accordance with the provisions in Clause 2, Article 39 of the Law on social insurance with the following guidelines:

a) Where the labor contract is expired during the period of time the employees take leave to enjoy the maternity benefits, the period of time to enjoy the maternity benefits from the leave to the expiration of labor contract is calculated as the period of time of social insurance payment. The period of time to enjoy the maternity benefits after the expiration of labor contract shall not be calculated as the period of time of social insurance payment.

b) The period of time to enjoy the maternity benefits of the employees who terminates their labor contract, work contract or resign prior to the time of birth giving or adoption of a child under 06 months of age specified in Clause 4, Article 31 of the Law on social insurance shall not be calculated as the period of time of social insurance payment.

c) Where the female employees return to work prior to the end of their prescribed maternity leave duration, the period of time to enjoy the maternity benefits from the leave to the time of returning to work prior to the end of their prescribed maternity leave duration is calculated as the period of time of social insurance payment. From the time of returning to work prior to the end of the maternity leave duration, the female employees shall also be entitled to the maternity benefits until the end of duration specified in Clause 1 or 3, Article 34 of the Law on social insurance but the employees and the employers must pay the social insurance and health insurance.

d) Where the father or the direct nurturer, the mother and father requesting the surrogacy or the direct nurturer is entitled to the maternity benefits but does not take leave, employees and the employers shall have to pay the social insurance and health insurance.

Therefore, female employees who return to work before the expiry of their statutory maternity leave will not have to pay social insurance premiums and will still be entitled to the maternity regime until the leave period expires in Vietnam. 

If you go back to work on February 14 of the following year, you will still be entitled to maternity benefits until April 13, after April 13, you will return to paying social insurance as normal in Vietnam.

Can female employees who go to work before the expiry of their statutory maternity leave get convalescence in Vietnam?

Pursuant to Clause 1, Article 41 of the Law on Social Insurance 2014 stipulates convalescence and health rehabilitation after the maternity leave period as follows:

1. Female employees whose health has not yet recovered within the first 30 working days after the maternity leave period specified in Article 33, or Clause 1 or 3, Article 34, of this Law, are entitled to a leave for convalescence and health rehabilitation of between 5 and 10 days.

The leave period for convalescence and health rehabilitation is inclusive of public holidays, New Year holidays and weekends. The leave period for convalescence and health rehabilitation which lasts from the end of a year to the following year shall be counted for the previous year.

Thus, female employees who have not yet recovered from maternity leave during the first 30 days of work will be entitled to a convalescence leave from 5 to 10 days in Vietnam. 

According to this Article, female employees who go to work before the expiry of their statutory maternity leave will not be entitled to this convalescence regime in Vietnam.

Best Regards!