Employees are entitled to the maternity regime for losing children after childbirth in accordance with Vietnamese law

1. Coverage of the maternity regime for losing children

(1) Persons working under indefinite-term labor contracts, definite-term labor contracts, seasonal labor contracts or contracts for given jobs with a term of between full 3 months and under 12 months;

(2) Persons working under labor contracts with a term of between full 1 month and under 3 months;

(3) Cadres, civil servants and public employees;

(4) Defense workers, public security workers and persons doing other jobs in cipher organizations;

(5) Officers and professional army men of the people's army; officers and professional non-commissioned officers and officers and technical non- commissioned officers of the people's public security; and persons engaged in cipher work and enjoying salaries like army men;

(6) Salaried managers of enterprises and cooperatives.

Therefore, entities prescribed in Article 30 of the Law on Social Security 2014 of Vietnam meeting requirements will be entitled to the maternity regime for losing children.

2. Conditions for the maternity regime for losing children

Pursuant to Article 31 of the Law on Social Security 2014 of Vietnam, for being covered with the maternity regime for female employee must meet all the following conditions:

(1) Female employees giving birth to children who have paid social insurance premiums for at least full 12 months and need to take a leave during pregnancy for pregnancy care as prescribed by a competent health establishment must have paid social insurance premiums for at least full 3 months within 12 months before childbirth.

(2) Female employees have paid social insurance premiums for at least 6 months within 12 months before childbirth. In case female employees who quit job before the time of childbirth but have paid social insurance premiums for at least 6 months within 12 months before childbirth are still entitled to the maternity regime. Thus, female employees who have paid social insurance premiums for at least 6 months within 12 months before childbirth are entitled to the maternity regime.

Moreover, female employees who have just given childbirth but the baby is born dead will be entitled to the maternity regime for losing children after childbirth. This Article is prescribed specifically at Point b Clause 1 Article 10 of the Circular No. 50/2015/TT-BLĐTBXH detailing and guiding the implementation of some articles of the Law on Social Insurance on compulsory insurance of Vietnam.

Period of maternity regime: After childbirth, if an under-2-month child dies, the mother is entitled to a 4-month leave from the date of childbirth; if a child aged 2 months or older dies, the mother is entitled to a 2-month leave from the date of the child’s death, but the maternity leave period must not exceed 6 months for giving birth for 1 child, 7 months for giving birth to twins, etc.

Example: Mrs. A gives birth, but after 10 days (under-2-month child) the baby dies, Mrs. A is just entitled to a 4-month leave from the date of childbirth instead of a 6-month period. In case Mrs. A has applied for leave before that time, it will not be counted in this 04-month period.

Concurrently, female employees whose health has not yet recovered within the first 30 working days after the maternity leave period are entitled to a leave for convalescence and health rehabilitation of between 5 and 10 days (prescribed in Clause 1 Article 41 of the Law on Social Security 2014 of Vietnam and Article 13 of the Circular No. 50/2015/TT-BLĐTBXH).

Allowance levels: A monthly allowance must equal 100% of the average of salaries of 6 months preceding the leave on which social insurance premiums are based.

Example: The average of salaries of Mrs. X before the maternity leave period is VND 6,000,000, thus, the allowance levels Mrs. X receive is VND 6,000,000 x 4 = VND 24,000,000.

In addition, female employees giving birth are also entitled to a lump-sum allowance (equaling 2 times the basic salary for each child in the month of childbirth), which is prescribed in Article 38 and Point a Clause 1 Article 39 of the Law on Social Security 2014 of Vietnam. Due to the impact of Covid-19, the National Assembly of Vietnam has not increase the statutory pay rate, so according to the Decree No. 38/2019/NĐ-CP dated May 09 2019, the statutory pay rate is VND 1,490,000 per month. According to the above provisions, the amount of allowance for female employees is VND 1,490,000 x 2 = VND 2,980,000.

Therefore, the maternity regime for losing children after childbirth is different from the normal maternity regime. Instead of a 6-month leave, based on the months of age of the dead baby, the mother will have a 2-month leave or a 4-month leave from the date of childbirth (this period is not counted towards personal leave).

Thuy Trong

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