Female employees are vulnerable due to specific physiological problems related to maternity, so they need to be protected when participating in labor relations. To explore about the maternity regime of employees in Vietnam, especially for female employees, Viet An Law summarizes the details in the article below.
- Labor Code 2019;
- Law on Social Insurance 2014;
- Circular 59/2015/TT-BLDTBXH detailing and guiding the implementation of a number of articles of the Law on Social Insurance on compulsory social insurance, amended and supplemented by Circular 06/2021/TT-BLDTBXH.
Conditions for enjoying maternity benefits
Subjects of employees entitled to maternity benefits
- Pregnant female employees;
- Female employees giving birth;
- The female employee is a surrogate mother and the mother asks for surrogacy;
- The employee adopts a child under 6 months old;
- Female employees put on IUDs, employees perform sterilization measures;
- A male employee who is paying social insurance premiums has a wife giving birth to a child.
Time to pay social insurance to enjoy maternity benefits
Female employees who give birth, surrogacy or adopt children under 6 months old must pay social insurance contributions for full 06 months or more within 12 months before giving birth or adopting a child.
Conditions for female employees taking maternity leave under the maternity regime
In case a female employee giving birth wishes to take maternity leave under the maternity regime, she must satisfy the following conditions:
- Having paid social insurance for full 12 months or more;
- Having a medical examination and treatment certificate designating maternity leave from a competent medical examination and treatment facility; and
- Must pay social insurance for full 03 months or more during the 12 months before giving birth , ie halved compared to the required time in case of no maternity leave.
In case employees are eligible to terminate labor contracts, work contracts or quit their jobs before the time of giving birth or adopting children under 6 months old, they are still entitled to the maternity regime as prescribed .
Determine the 12-month period before the birth or adoption of a child
Birth or adoption is a milestone to calculate the 12-month period, specifically:
- The 15th day of the month : that starting month is not included in the 12-month period.
- From the 15th day onwards of the month and the month in which social insurance premiums are paid : that starting month is counted into the 12-month period. If that month does not pay social insurance premiums, it will not be counted in the 12 month period .
Example 1: Ms. A gave birth to a child on January 18, 2017 and has paid social insurance premiums in January 2017, the period of 12 months before giving birth is counted from February 2016 to January 2017, if during this time she If A has paid social insurance premiums for full 6 months or more or for full 3 months or more, in case she has to take a leave of absence from work to take care of the pregnancy under the direction of a competent medical facility, Ms. A is entitled to the social insurance benefits. prescribed maternity.
Example 2 : In August 2017, Ms. B terminated the labor contract and gave birth to a child on December 14, 2017 . So December 2017 is not counted in the 12-month period, but 12 months are counted from December 2016 – November 2017 .
If during this time, Ms. B has paid social insurance premiums for 6 months or more or for full 3 months or more in case she has to take leave from work to take care of her pregnancy as prescribed by a competent medical examination and treatment facility. then Ms. B is entitled to the maternity regime according to regulations.
Conditions for one-time allowance when giving birth
- Female employees giving birth or employees adopting children under 06 months old: receive a lump-sum allowance for each child equal to 02 times the base salary in the month the female employee gives birth or the month the employee adopts a child.
- In case of giving birth but only the father participates in social insurance: the father is entitled to a lump-sum allowance equal to 02 times the base salary in the month of childbirth for each child.
Conditions: Father must pay social insurance for full 06 months or more in the period of 12 months before giving birth (how to determine the 12-month period as described).
- In case the father and mother both participate in social insurance but only the father is eligible for the maternity regime when giving birth: the father is entitled to a lump-sum allowance upon childbirth according to the above provisions.
During the working period before the end of the maternity leave period, if female employees have to take time off work for antenatal care, miscarriage, curettage, abortion, stillbirth, pathological abortion, or taking contraceptive measures, they shall be entitled to maternity benefits as prescribed in Articles 32, 33 and 37 of the Law on Social Insurance.
Maternity benefit rate
Maternity benefits are calculated according to the monthly salary on which social insurance premiums are based of the most recent months before taking the maternity leave. Maternity benefits can be calculated monthly, daily, and one time allowance at the time of birth or adoption of children under 06 months old.
This salary calculation method is specifically guided by us at the article: Maternity benefit rate in Vietnam.
In addition, you can also read more articles of Viet An Law related to the period of maternity benefits and post-maternity convalescence under current Vietnamese law.
Social insurance during vacation time
The time off from work to enjoy the maternity regime from 14 working days or more in a month is counted as the period of payment of social insurance, the employee and the employer are not required to pay social insurance.
- In case the labor contract expires while the employee is on leave to enjoy the maternity regime, the period of enjoying the maternity regime from the time of leaving work until the labor contract expires is counted as the period of payment of social insurance premiums, the period of enjoying the maternity regime after the labor contract expires is not counted as the period of payment of social insurance premiums.
- The maternity leave period of employees who terminate their labor contracts, work contracts or quit their jobs before the time of giving birth or adopting children under 06 months of age must not be calculated as the time of payment of social insurance.
- In case female employees go to work before the end of the prescribed maternity leave period, the period of enjoying the maternity benefits from the time they leave work to the time they go to work before the end of the maternity leave period is counted as the period of payment of social insurance premiums, from the time of going to work before the end of the maternity leave period, the female employee is still entitled to the 06-month regime and children die after birth regime as presented belows, but the employee and employers must pay social insurance and health insurance.
- In case the father or the person directly fostering, the mother asking for surrogacy, the father asking for surrogacy or the person directly nurturing enjoy the maternity regime without taking leave, the employee and the employer still have to pay social insurance and health insurance.
Dossier and settlement of maternity benefits
- Dossier and settlement of entitlement to maternity, convalescence and health rehabilitation regimes after maternity shall comply with the provisions of Articles 101, 102, Article 103 of the Law on Social Insurance and Article 5 of Decree No. 115/2015/ ND – CP.
- The employee is responsible for submitting the prescribed dossier to the employer but within 45 days from the date of return to work.
- In case an employee terminates a labor contract, a working contract or quits his/her job before the time of childbirth, the time of child adoption, or the time of adoption, he/she shall submit a dossier and present his/her social insurance number to the social insurance agency.
Above is the content of advice from Viet An Law on maternity regime of employees in Vietnam. If you have questions and need advice related to labor law, please contact Viet An Law Firm – Tax Agent for the best support.