The period of maternity and post-maternity regime in Vietnam
Not only is time while enjoying maternity leave important, but a woman’s health can be affected after pregnancy. To ensure the rights of female employees, the law also has its own regulations on post-maternity convalescence time. In the following article, Viet An Law will present the basic legal issues for the period of maternity and post-maternity regime in Vietnam.
Table of contents
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Legal basis
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.
The period of maternity regime
During pregnancy check-up
Frequency: during pregnancy, female employees are allowed 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.
The maternity leave period specified in this Article is calculated by working days excluding public holidays, New Year holidays and weekly rest days.
When giving birth
Female employees giving birth are entitled to take maternity leave before and after giving birth for 6 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 (hereinafter referred to as “06-month regime“).
The maximum period of maternity leave before giving birth is not more than 02 months.
Male employees who are paying social insurance premiums when their wives give birth to children are entitled to maternity leave as follows:
05 working days;
07 working days when the wife gives birth to a child requiring surgery or gives birth to a child under 32 weeks old;
In case the wife gives birth to twins, she is entitled to 10 working days off, from the birth of triplets or more, for each additional child, she is entitled to an additional 03 working days;
In case the wife has twins or more and needs surgery, she is entitled to 14 working days off.
Note:
The time off work to enjoy the maternity regime of male employees is calculated within the first 30 days from the date the wife gives birth.
Except for the time off for male employees mentioned above, the maternity leave period is included public holidays, New Year holidays, and weekly rest days.
After giving birth, in some special cases, employees can enjoy the following additional leave regimes:
Case
Regime
Note
Children under 2 months old die after birth.
Leave work for 4 months from the date of birth
Enjoy additional benefits along with the time you were entitled to before giving birth.
This time is not included in the time off work separately according to the provisions of the labor law.
Children aged 2 months or older die after birth.
Taking leave for 02 months from the date of death of the child, but not exceeding the 06-month regime.
Mother dies after giving birth (with mother or both parents participating in social insurance are eligible for benefits).
The mother or the person directly taking care of her is entitled to a leave of absence from work to enjoy the maternity regime for the remaining time of the mother as prescribed.
The benefit level is calculated on the basis of the average salary of the mother or father (if the father participates in social insurance).
In case the mother is not eligible, the time off is counted until the child is full 6 months old. The level of benefits is calculated on the basis of the average salary calculated by the father’s regime.
In case of not taking leave according to this regulation, they are entitled to leave for 06 months in addition to salary. The level of benefits is calculated on the basis of the average salary calculated for the mother’s regime.
The mother dies after giving birth or is in danger after giving birth but is no longer healthy enough to take care of the child as certified by a competent medical examination and treatment facility.
Fathers are entitled to take maternity leave until the child is 6 months old.
Applicable when only the father participates in social insurance. The level of benefits is calculated on the basis of the average salary calculated by the father’s regime .
Note the special cases:
Female employees who take maternity leave before giving birth but still have stillbirth, if female employees meet the conditions for the period of social insurance payment, in addition to the period of leave to enjoy the prenatal benefits, female employees are entitled to take leave and enjoy the benefits. miscarriage, curettage, abortion, stillbirth or pathological abortion from the time of stillbirth.
Example 15: Ms. C has continuously participated in compulsory social insurance for 3 years, when she is 8 months pregnant, she takes leave to enjoy the maternity benefits before giving birth. Thus, Ms. C, in addition to being entitled to the maternity regime until the stillbirth, is also entitled to a maternity leave as indicated by a competent medical facility, but for a maximum of 50 days. including public holidays, New Year’s holidays, and weekends.
In case female employees are pregnant with twins or more and if one of them dies or is stillborn during childbirth, the period of enjoyment, maternity allowance upon childbirth and one-time allowance upon childbirth shall be calculated according to the number of children born, including dead or stillborn children. Specific benefit period:
In case all fetuses are stillborn, the period of leave to enjoy the stillbirth benefits for each fetus, does not include the same period of enjoyment.
In case all fetuses die after giving birth , the time off from work to enjoy the maternity regime shall comply with the regime when the child dies after birth , applicable to the last child to die .
If a male employee is on leave many times, the time to start taking leave for the last time must still be within the first 30 days from the date his wife gives birth and the total period of leave to enjoy the maternity regime must not exceed preriod as prescribed.
The time to enjoy the maternity regime coincides with the case where the employee is taking annual leave, personal leave, unpaid leave in accordance with the labor law: the same period is calculated to enjoy the maternity regime as prescribed.
Post-maternity regime in Vietnam
Female employees, within the first 30 working days after the expiry of the maternity leave period, but the employees’ health has not recovered but their health has not yet recovered, they shall be entitled to convalescence and rehabilitation. healthy from 5 days to 10 days.
The time for convalescence and recovery includes public holidays, New Year holidays, and weekly rest days. In case there is a period of convalescence and health rehabilitation from the end of the previous year to the beginning of the next year, such time off shall be counted for the previous year.
The specific number of days off is decided by the employer and the executive committee of the grassroots trade union or the employer.
Maximum break time
Up to 10 days for female employees who give birth once with two or more children;
Up to 07 days for female employees who have to undergo surgery;
Maximum 05 days for other cases.
Salary during leave
The rate of enjoyment of the convalescence and health rehabilitation regime after maternity for one day is equal to 30% of the base salary.
Note:
Female employees who go to work before the end of the maternity leave period as prescribed in Article 40 of the Law on Social Insurance shall not receive benefits for convalescence and health rehabilitation after the period of enjoying the benefits upon childbirth.
In any year, female employees are eligible for convalescence and health rehabilitation, the time off work for convalescence and health rehabilitation shall be calculated for that year.
For example: Ms. T is participating in compulsory social insurance, on December 15, 2016 returned to work after taking a leave of absence to enjoy maternity benefits when giving birth, until January 10, 2017 due to her health not yet recovered. Ms. T was given 5 days of convalescence and rehabilitation by the agency.
In case Ms. T is entitled to 5 days off from work to enjoy convalescence and health rehabilitation, this leave is counted for 2016.
For female employees who have just retired from work within a year, they are entitled to the convalescence and health rehabilitation regime after the maternity leave period specified in Article 33 of the Law on Social Insurance; If you have just quit your job to enjoy the convalescence and health rehabilitation regime after the maternity leave period specified in Clause 1 or 3, Article 34 of the Law on Social Insurance, the period of leave to enjoy the convalescence and health rehabilitation regime within years for each case not exceeding the maximum time specified.
Above is the content of advice from Viet An Law on the period of maternity and post-maternity regime 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
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