Can I take maternity leave while pregnant in accordance with Vietnamese law?
Pregnancy has been a difficult and exhausting process for a woman. When going to work, it is impossible to avoid pressure and busyness. There are many reasons why female workers have to take time off work while pregnant, such as poor health, work pressure, etc. The most worrying thing is, do they have the same maternity benefits as other workers? To dig deeper into this, today, LSX Lawfirm will give you an article about “Can I take maternity leave while pregnant in accordance with Vietnamese law?”, as follows:
Legal grounds
Labor Code 2019
Law on Health Insurance 2014 amended on June 13, 2014
Can the contract be terminated when the employee is pregnant?
In order to protect employees, especially female employees, Point dd, Clause 2, Article 35 of the Labor Code 2019 allows pregnant female employees to unilaterally terminate their labor contracts upon confirmation of medical examination and treatment establishments. , medical authorities about continuing to work will adversely affect the fetus.
In addition, these employees are also entitled to actively terminate the labor contract in one of the following cases:
– Expiration of labor contract.
– Completed the work according to the labor contract.
– Both parties agree to terminate the labor contract.
Along with that, Clause 3, Article 137 of the Labor Code 2019 also states
3. Employers may not dismiss or unilaterally terminate labor contracts with employees for reasons of marriage, pregnancy, maternity leave, or raising children under 12 months of age unless the employer being an individual dies, is declared by the Court to have lost his civil act capacity, is missing or is dead, or the non-individual employer terminates its operation or is registered by a specialized agency for civil acts. A business unit under the People’s Committee of the province issues a notice that there is no legal representative, the person authorized to perform the rights and obligations of the legal representative.
According to this provision, the employer will not be able to unilaterally terminate the contract with a female employee for the reason that she is pregnant.
However, if there are other reasons prescribed by law such as The employee regularly failing to complete the work, the employee voluntarily quits without a valid reason for 05 consecutive working days or more, …, the employer still has the right to unilaterally terminate the contract with the pregnant employee.
Pregnant, taking maternity leave?
Clause 4, Article 31 of the Law on Social Insurance in 2014 stipulates:
Employees who fully meet the conditions specified in Clauses 2 and 3 of this Article, but terminate their labor contracts, work contracts or quit their jobs before the time of giving birth or adopting children under 06 months of age, still entitled to the unemployment benefits. maternity as prescribed in Articles 34, 36, 38, and Clause 1, Article 39 of this Law. Accordingly, a pregnant female employee who quits her job before the time of childbirth still entitled to the maternity regime if she meets the conditions in one of the following two cases:
(1) In case of normal pregnancy: Compulsory social insurance contributions for full 06 months or more within 12 months before giving birth.
(2) In case of a weak fetus with a prescription for maternity leave from a competent medical examination and treatment facility: Satisfying the following 02 conditions:
– Must pay compulsory social insurance for the full 12 months or more.
And
– Having paid compulsory social insurance for full 03 months or more within 12 months before giving birth. Thus, as long as the above conditions met, female employees who take leave while pregnant will still entitled to the maternity regime when giving birth.
At this time, instead of submitting the application for maternity benefits to the employer, the employee will have to carry out the procedure himself at the social insurance agency where he/she resides.
According to Articles 101 and 102 of the Law on Social Insurance 2014 and Article 4 of Decision 166/QD-BHXH, employees must prepare documents to submit to the social insurance agency, including:
– A copy of the birth certificate or birth extract or a copy of the child’s birth certificate;
– Present the social insurance book.
If the dossier is valid, the social insurance agency will handle the maternity benefits for the employee within 5 working days.
Maternity benefit period?
Pursuant to Clauses 1 and 2, Article 34, the time for enjoying the regime upon childbirth prescribed as follows:
1. Female employees giving birth entitled to take maternity leave before and after giving birth for 6 months. In case female employees give birth to twins or more, from the second child onwards, for each child, the mother entitled to 1 more month of leave. The maximum period of leave for maternity leave before giving birth is not more than 2 months. 2. A male employee who is paying social insurance premiums when his wife gives birth to a child entitled to maternity leave as follows: a) 05 working days;
b) 07 working days when his wife gives birth to a child requiring surgery or giving birth under the child. 32 weeks of age;
c) If the wife gives birth to twins, she entitled to 10 working days of leave; from the birth of triplets or more, for each additional child, she entitled to an additional 03 working days;
d) In case the wife has twins or more and has to have surgery, she entitled to 14 working days off. The time off work to enjoy the maternity regime specified in this Clause calculated within the first 30 days from the date the wife gives birth to the child.
Maternity benefits under new regulations
Pursuant Article 38 of the Law on Social Insurance 2014, stipulates that female employees who give birth or adopt children under 6 months old entitled to a lump-sum allowance for each child equal to 2 times the base salary in the month of labor. The female employee gives birth or the month the employee adopts a child. In case of childbirth but only the father participates in social insurance, the father entitled to a lump-sum allowance equal to 02 times the basic salary in the month of childbirth for each child.
Before July 1, 2020, the base salary is VND 1,490,000/month and from July 1, 2020, the base salary is VND 1,600,000/month, so the one-time allowance for each child increased by 220,000 VND.
For example, Ms. A pays social insurance premiums from January 2020 to June 2020, the one-time allowance for each child is: 1,490,000 VND x 2 = 2,980,000 VND. If Ms. A gives birth to a child later On July 1, 2020, the one-time allowance for each child is VND 1,60,000 x 2 = VND 3,200,000.
Pursuant to Article 39 of the Law on Social Insurance 2014, an employee entitled to maternity benefits shall entitled to 100% of the average monthly salary for which social insurance premiums are based in the 06 months before taking leave to enjoy the maternity regime. . In case the employee has paid social insurance premiums for less than 6 months, the maternity benefit rate is the average monthly salary of the months for which social insurance premiums have paid.
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Related questions
The maternity insurance regime is one of the compulsory social insurance regimes, including regulations promulgated by the State in order to ensure income and health for female employees during pregnancy, childbirth, child-rearing. adopt new children, apply contraceptive measures, and give birth to male workers when their wives give birth to children.
Pursuant to Article 31 of the Law on Social Insurance 2014.
During pregnancy, female employees are entitled to take leave from work to go to antenatal care 5 times, 1 day each time; If the patient is far from medical examination and treatment establishments or the pregnant woman has a medical condition or an abnormal pregnancy, she is entitled to 2 days off for each prenatal check-up. The time off work to enjoy the maternity regime specified in this Article is calculated by working days excluding public holidays, New Year holidays, and weekly rest days.
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