Can female employees who are raising children under 12 months of age work at night in Vietnam?

1. Can female employees who are raising children under 12 months of age work at night in Vietnam?

Article 137 of the Labor Code 2019 provides for maternity protection as follows:

1. An employer must not require a female employee to work at night, work overtime or go on a long distance working trip in the following circumstances:

a) The employee reaches her seventh month of pregnancy; or her sixth month of pregnancy when working in upland, remote, border and island areas;

b) The employee is raising a child under 12 months of age, unless otherwise agreed by her.

2. Whenever an employer is informed of the pregnancy of an female employee who is doing a laborious, toxic or dangerous work, a highly laborious, toxic or dangerous work or any work that might negatively affect her maternity, the employer shall assign her to a less laborious or safer work, or reduce the working hours by 01 hour per day without reducing her salary, rights or benefits until her child reaches 12 months of age.

3. The employer must not dismiss an employee or unilaterally terminate the employment contract with an employee due to his/her marriage, pregnancy, maternity leave, or nursing a child under 12 months of age, except for cases where the employer that is a natural person dies or is declared incapacitated, missing or dead by the court, or the employer that is not a natural person ceases its business operation, declared by a provincial business registration authority that it does not have a legal representative or a person authorized to perform the legal representative’s rights and obligations.

Upon expiration of the employment contract with female employee who is pregnant or nursing a child under 12 months of age, conclusion of a new employment contract shall be given priority.

4. During her menstruation period, a female employee shall be entitled to a 30 minute break in every working day; a female employee nursing a child under 12 months of age shall be entitled to 60 minutes breaks in every working day with full salary as stipulated in the employment contract.

Thus, according to the above regulations, employers are not allowed to employ employees who are raising children under 12 months of age to work at night in Vietnam. It is against the law to force you to work at night when you have a child 7 months of age.

2. How much is fine for using female employees who is raising a child under 12 months of age to work at night in Vietnam?

According to Clause 2, Article 28 of Decree 12/2022/ND-CP, violations against regulations on female employees and assurance of gender equality are as follows:

2. A fine ranging from VND 10.000.000 to VND 20.000.000 shall be imposed upon an employer for commission of one of the following violations:

a) Requiring a female employee who reaches her seventh month of pregnancy, or her sixth month of pregnancy when working in upland, remote, border and island areas, to work overtime, work at night or go on a long distance working trip;

b) Requiring a female employee who is raising a child under 12 months of age to work overtime, work at night or go on a long distance working trip, unless otherwise agreed by the employee;

c) Failing to reassign a female employee who is performing an arduous, hazardous and dangerous work or job, or an extremely arduous, hazardous and dangerous work or job, or any work or job that might negatively affect her maternity and child nursing, to a less arduous or safer work or reduce her working hours when being informed by her of pregnancy as prescribed in Clause 2 Article 137 of the Labour Code, unless otherwise agreed by two parties;

d) Failing to allow a female employee to take a 30-minute break in every working day during her menstruation period, unless otherwise agreed by two parties;

dd) Failing to allow a female employee who is nursing a child under 12 months of age to take a 60-minute break in every working day, unless otherwise agreed by two parties;

e) Failing to ensure employment for employees as prescribed in Article 140 of the Labour Code;

g) Failing to prioritize the conclusion of a new employment contract with a female employee who is pregnant or nursing a child under 12 months of age upon expiration of her employment contract;

h) Taking disciplinary measures against a female employee during her pregnancy or maternity leave in accordance with regulations of laws on social insurance; taking disciplinary measures against a female employee who is nursing a child under 12 months of age;

i) Dismissing or unilaterally terminating the employment contract with an employee due to his/her marriage, pregnancy, maternity leave, or nursing of a child under 12 months of age, except for cases where the employer that is a natural person dies or is declared incapacitated, missing or dead by the court, or the employer that is not a natural person ceases its business operations, declared by a business registration authority affiliated to the provincial People’s Committee that it does not have a legal representative or a person authorized to perform the legal representative’s rights and obligations, if not liable to criminal prosecution;

k) Failing to provide adequate information on the hazards, risks and requirements of the works for their employees to serve their decision making and failing to ensure OSH conditions for employees when assigning them to perform any of the works included in the list of jobs and works that are harmful to child-bearing and parenting functions;

l) Failing to set up a lactation room at the workplace when employing 1.000 female employees or more.

Pursuant to Clause 1, Article 6 of Decree 12/2022/ND-CP stipulating fine levels:

1. The fines for administrative violations prescribed in Chapter II, Chapter III and Chapter IV of this Decree shall be imposed upon violating individuals, except the fines in Clauses 1, 2, 3, 5 Article 7, Clauses 3, 4, 6 Article 13, Clause 2 Article 25, Clause 1 Article 26, Clauses 1, 5, 6, 7 Article 27, Clause 8 Article 39, Clause 5 Article 41, Clauses 1 through 12 Article 42, Clauses 1 through 8 Article 43, Clauses 1 through 6 Article 45, Clause 3 Article 46 of this Decree. The fine imposed upon an organization is twice as much as that imposed upon an individual for committing the same administrative violation.

Therefore, if the company forces you to work at night when you have a child 7 months of age, the company will be fined from VND 20,000,000 to VND 40,000,000 in Vietnam.

Best Regards!