Can female employees want to return to work before the expiry of their statutory maternity leave in Vietnam?

Can female employees want to return to work before the expiry of their statutory maternity leave in Vietnam?

Article 139 of the 2019 Labor Code stipulates maternity leave 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, female employees can return to work before the expiry of their statutory maternity leave when they have been taken at least 04 months of leave and must notify the employer in advance, receive the employer's consent and have confirmation from a competent health facility regarding early return to work. In your case, you have only been taken 3 months of leave, so you are not eligible to return to work before your maternity leave in Vietnam.

Can female employees want to return to work before the expiry of their statutory maternity leave in Vietnam? (Image from the Internet)

What are benefits for female employees going to work prior to the expiration of the maternity leave period in Vietnam? 

According to Article 40 of the 2014 Law on Social Insurance, female employees going to work prior to the expiration of the maternity leave period as follows:

1. Female employees may go to work prior to the expiration of the maternity leave period specified in Clause 1 or 3, Article 34 of this Law when fully meeting the following conditions:

a/ Having taken a leave for at least 4 months;

b/ Notifying in advance their wish to go to work prior to the expiration of the maternity leave period and obtaining the consent of their employers.

2. Female employees who go to work prior to the expiration of the maternity leave period are entitled to not only salaries but also the maternity benefits until the expiration of the period specified in Clause 1 or 3, Article 34 of this Law.

Pursuant to Clause 2, Article 12, Circular 59/2015/TT-BLDTBXH stipulates rate of entitlement to maternity benefits 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, if you return to work before the expiry of your statutory maternity leave in Vietnam, you will still receive a salary from the company and still enjoy maternity benefits as usual. However, from the time you go to work before the expiry of your statutory maternity leave, you and the company must pay social insurance and health insurance.

Best regards!