“Hello, Lawyer. I am applying to a foreign company in Vietnam. When signing the contract, the company has a clause that does not allow the employee to become pregnant within a year of working in the company. If there is a violation, the company can unilaterally terminate the labor contract. I wonder if it is legal to prohibit employees from getting pregnant while working at the company. In what cases does the method terminate the labor contract?”. Thanks for your question. To answer this question, today, LSX Lawfirm will give you an article about “Is it legal for employees to get pregnant while working at the company?”, as follows:
Legal grounds
- Labor Code 2019
Laws on labor contracts?
Pursuant to the provisions of Article 13 of the Labor Code 2019, the labor contract is as follows:
“first. A labor contract is an agreement between an employee and an employer on paid jobs, wages, working conditions, rights, and obligations of each party in the labor relationship.
In case two parties agree by another name but with contents showing paid employment, salary, and the management, administration, and supervision of one party, it shall be considered as an employment contract.
- Before accepting employees to work, the employer must enter into a labor contract with the employee.”
Is it legal for employees to get pregnant while working at the company?
Pursuant to the provisions of Clause 3, Article 137 of the Labor Code 2019, maternity protection is as follows:
- 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 in charge of 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.
In case the labor contract expires while the female employee is pregnant or raising a child under 12 months old, she shall be given priority to enter into a new labor contract.
- Female employees during their menstrual period are entitled to a 30-minute break every day, and during the time of raising children under 12 months of age, they are entitled to a 60-minute break every day during working time. The time off is still entitled to full salary according to the labor contract.
In addition
Along with that, according to the provisions of the Ordinance amending article 10 of the Ordinance on Population 2008 as follows:
“Article 1. Amendment to Article 10 of the 2003 Ordinance on Population is as follows:
Article 10. Rights and obligations of each couple and individual in the implementation of the population campaign and family planning and reproductive health care:
- Decide the time and distance to give birth;
- Giving birth to one or two children, except for special cases prescribed by the Government;
- Protect the health, take measures to prevent reproductive tract infections, sexually transmitted diseases, HIV/AIDS, and perform other obligations related to reproductive health.”
Thus, comparing the above regulations, individuals and couples have the right to decide on their own time and space to have children. According to the law, it is not allowed for the employer to unilaterally terminate the contract with the employee while pregnant. In the case of the prior agreement, there is no clear regulation on this issue. However, according to morality and custom, this is an unethical agreement to prevent human rights. Therefore, if a dispute occurs and must wait for the decision of the People’s Court, the fact that this agreement may still not be accepted by the Court because it is contrary to social ethics.
In what cases does the employer have the right to unilaterally terminate the labor contract?
Pursuant to the provisions of Clause 1, Article 36 of the Labor Code 2019, the employer has the right to unilaterally terminate the labor contract in the following cases:
“a) The employee who regularly fails to complete the work according to the labor contract is determined according to the criteria for assessing the job completion level in the employer’s regulations. Regulations on assessment of job completion are promulgated by the employer, but must consult the employee representative organization at the grassroots level in the case of a representative organization of employees at the grassroots;
b) An employee suffering from an illness or accident has received treatment for 12 consecutive months, for employees working under an indefinite term labor contract, or has received treatment for 6 consecutive months, for employees working under a labor contract; definite-term labor contract with a term from 12 months to 36 months or more than half the term of the labor contract for the employee working under a definite-term labor contract with a term of fewer than 12 months but the working capacity has not been restored. dress.
When the worker’s health recovers, the employer will consider continuing to enter into a labor contract with the employee.
And
c) Due to natural disasters, fires, dangerous epidemics, enemy sabotage or relocation, or downsizing of production and business at the request of competent state agencies, the employer has sought all remedies. but still forced to reduce the workplace;
d) The employee is not present at the workplace after the time limit specified in Article 31 of this Code;
dd) The employee reaches the retirement age as prescribed in Article 169 of this Code unless otherwise agreed;
e) The employee voluntarily quits his job without a legitimate reason for 05 consecutive working days or more;
g) The employee provides untruthful information as prescribed in Clause 2, Article 16 of this Code when entering into a labor contract, affecting the recruitment of employees.
Therefore, the employer’s unilateral termination of the labor contract must meet the above legal conditions to apply, but cannot be agreed upon with the employee in advance.
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Related questions
The answer is No. The Labor Code (LOL) has provisions to protect pregnant female employees. In Clause 4, Article 122 of the Labor Code 2019, one of the important principles when handling labor discipline is not to discipline pregnant employees.
According to Article 139 of the Labor Code 2019, maternity leave is as follows:
“Article 139. Maternity leave
1. Female employees are entitled to maternity leave before and after giving birth for 6 months; the period of leave before giving birth shall not exceed 02 months. In case female employees have twins or more, from the second child onwards, for each child, the mother is entitled to an extra month of leave.
2. During maternity leave, female employees are entitled to the maternity regime in accordance with the law on social insurance.
3. At the end of the maternity leave period specified in Clause 1 of this Article, if there is a need, the female employee may take an additional period of unpaid leave after reaching an agreement with the employer
According to the law, 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 the medical examination and treatment facility or the pregnant woman has a medical condition or an abnormal pregnancy, she is entitled to 2 days off for each prenatal check-up
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