If employees have to be treated for tuberculosis for 13 consecutive months, will their employment contracts be terminated in Vietnam?

If employees have to be treated for tuberculosis for 13 consecutive months, will their employment contracts be terminated in Vietnam?

Article 37 of the Labor Code 2019 stipulates that cases in which an employer is prohibited from unilaterally terminating an employment contract as follows:

1. The employee is suffering from an illness or work accident, occupational disease and is being treated or nursed under the decision of a competent health institution, except for the cases stipulated in Point b Clause 1 Article 36 of this Labor Code.

2. The employee is on annual leave, personal leave, or any other types of leave permitted by the employer.

3. The employee is pregnant, on maternal leave or raising a child under 12 months of age.

According to Clause 1, Article 36 of the 2019 Labor Code, the right of an employer to unilaterally terminates the employment contract:

1. An employer shall have the right to unilaterally terminate an employment contract in one of the following circumstances:

a) The employee repeatedly fails to perform his/her work according to the criteria for assessment of employees’ fulfillment of duties established by the employer. The criteria for assessment of employees’ fulfillment of duties shall be established by the employer with consideration taken of opinions offered by the representative organization of employees (if any);

b) The employee is sick or has an accident and remains unable to work after having received treatment for a period of 12 consecutive months in the case of an indefinite-term employment contract, for 06 consecutive months in the case of an employment contract with a fixed term of 12 – 36 months, or more than half the duration of the contract in case of an employment contract with a fixed term of less than 12 months.

Upon recovery, the employer may consider concluding another employment contract with the employee;

c) In the event of a natural disaster, fire, major epidemic, hostility, relocation or downsizing requested by a competent authority, the employer has to lay off employees after all possibilities have been exhausted;

d) The employee is not present at the workplace after the time limit specified in Article 31 of this Labor Code;

dd) The employee reaches the retirement age specified in Article 169 of this Labor Code, unless otherwise agreed by the parties;

e) The employee is not present at work without acceptable excuses for at least 05 consecutive working days;

g) The employee fails to provide truthful information during the conclusion of the employment contract in accordance with Clause 2 Article 16 of this Labor Code in a manner that affects the recruitment.

Thus, according to the above provisions in Vietnam, the employer can unilaterally terminate the employment contract with the employee who is being treated for illness or accident for 12 consecutive months (for employees working under indefinite-term employment contracts). 

In your case, if you have to be treated for tuberculosis for 13 months or more and continuously as prescribed by your doctor, K Company Limited can terminate the employment contract with you. The termination of the company's employment contract is not against the law in Vietnam.

If employment contract is terminated for 13 consecutive months due to tuberculosis treatment, how many days in advance must company give notice in Vietnam?

Pursuant to Clause 2, Article 36 of the 2019 Labor Code, the employer's right to unilaterally terminate a employment contract is as follows:

2. When unilaterally terminating the employment contract in any of the cases specified in Point a, b, c, dd and g Clause 1 of this Article, the employer shall inform the employee  in advance:

a) at least 45 days in case of an indefinite-term employment contract;

b) at least 30 days in case of an employment contract with a fixed term of 12 – 36 months;

c) at least 03 working days in the case of an employment contract with a fixed term of less than 12 months and in the cases stipulated in Point b Clause 1 of this Article;

d) The notice period in certain fields and jobs shall be specified by the government.

Therefore, according to the above provisions in Vietnam, the company wants to terminate the employment contract with you when you are treated for tuberculosis for 13 consecutive months, company must notify you 45 days in advance because you work under an indefinite-term employment contract.

Can employees be paid annual leave without leave when the employment contract is terminated in Vietnam?

According to Article 113 of the Labor Code 2019, the annual leave is as follows:

1. Any employee who has been working for an employer for 12 months is entitled to fully-paid annual leave, which is stipulated in his/her employment contract as follows:

a) 12 working days for employees who work in normal working conditions;

b) 14 working days for employees that are minors, the disabled, employees who do laborious, toxic or dangerous works;

c) 16 working days for employees who do highly laborious, toxic or dangerous works.

2. An employee who has been working for an employer for less than 12 months will have a number of paid leave days proportional to the number of working months.

3. An employee who, due to employment termination or job loss, has not taken or not entirely taken up his/her annual leave shall be paid in compensation for the untaken leave days.

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According to this Article, when you terminate the contract with company K and you have not taken the annual leave, the company will be responsible for paying the salary for those days.

Best Regards!