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Viet Nam - Maternity protection - 2011


LAST UPDATE

29 August 2011

Data quantity

NORMAL

SOURCES


Name of Act

Labour Code dated 23 June 1994, as amended to 2 April 2002 (effective 1 January 2003), [Law 35-2002-QH10]. Law amending and supplementing a number of articles of the Labour Code dated 29 November 2006 (effective 1 July 2007) also attached. Published by the Ministry of Labour - Invalids and Social Affairs at http://english.molisa.gov.vn and accessed 15 August 2011.
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Name of Act

Law on Social Insurance, Act No. 71/2006/QH11, Official Gazette (the English translation of Công Báo), 2006-11, No. 06-07, pp. 34-62. Published by the Ministry of Labour - Invalids and Social Affairs at http://english.molisa.gov.vn and accessed 15 August 2011.

Name of Act

Decree No. 152/2006 guiding a number of articles of the Law on Social Insurance regarding compulsory insurance, dated 22 December 2006, Official Gazette (the English translation of Công Báo), 2006-12, Nos. 11-12, pp. 5-26. Published by the Ministry of Labour - Invalids and Social Affairs at http://english.molisa.gov.vn and accessed 16 August 2011.

Name of Act

Law on Gender Equality, Law No. 73/2006/QH11, dated 29 November 2006. Published by the Ministry of Labour - Invalids and Social Affairs at http://english.molisa.gov.vn and accessed 15 August 2011.

Name of Act

Circular No. 03/1994 stipulating harmful working conditions and list of occupations in which employment of female is prohibited, dated 28 January 1994. Published by the Ministry of Labour - Invalids and Social Affairs at http://english.molisa.gov.vn and accessed 15 August 2011.

Name of Act

Decree No. 55/2009 on sanctioning of administrative violations of gender equality, dated 10 June 2009. Published by the Ministry of Labour - Invalids and Social Affairs at http://english.molisa.gov.vn and accessed 16 August 2011.

Name of Act

Decree No. 67/2007 on support policies for social protection beneficiaries, dated 13 April 2007. Published by the Ministry of Labour - Invalids and Social Affairs at http://english.molisa.gov.vn and accessed 16 August 2011.

Name of Act

Decree No. 23/1996 providing details and guidance for the implementation of a number of articles of the Labour Code on women labourers, dated 18 April 1996. Published by the Ministry of Labour - Invalids and Social Affairs at http://english.molisa.gov.vn and accessed 15 August 2011.

Name of Act

Decree No. 48/2009 providing for measures to assure gender equality, dated 19 May 2009. Published by the Ministry of Labour - Invalids and Social Affairs at http://english.molisa.gov.vn and accessed 15 August 2011.

MATERNITY LEAVE


Scope

All female workers hired on the basis of a contract of employment in any sector of the economy, regardless of the form of ownership, apprentices and domestic servants. Vietnamese citizens and foreigners working in enterprises with foreign capital or in an international organisation operating in Vietnam are also covered, except if the provision of an international treaty signed by Vietnam provides for other rules. Civil servants, the armed forces and members of coooperatives are covered by other legislation.
Labour Code 1994 §1-3, 114

Qualifying conditions

No qualifying conditions identified.

Duration

The duration of the maternity leave entitlement varies from 4 to 6 months, depending on the nature and conditions of the employee’s work.
Labour Code 1994
Decree No. 23/1996 - Details and guidance on women labourers

Compulsory leave

Women are required to have at least two months’ rest after the birth, and longer if not certified as fit to return to work at that time.
Labour Code 1994 §114(2)
Law on Social Insurance 2006 §36

General total duration

After giving birth, the female employee shall be entitled maternity benefit stipulated as follows:
a) Four months for the female employee who works in normal conditions;
b) Five months for the female employee who works in hazardous occupation or on heavy duty job under the list of hazardous occupations or on heavy duty jobs issued by MoLISA and MoH; on 3 shifts duty; and working regular in areas where the area allowance is indexed at least 0,7 or for the People’s Army and the People’s public security;
c) Six months for the disabled female employee with disability as regulated by the regulations on people with disability in the law;
d) In the case of twin or multiple births, in addition to the period of maternity leave stipulated in this provision, the female employee shall be entitled an additional leave of 30 days for each child from the second.
Law on Social Insurance 2006 §31
Labour Code 1994 §114
Historical data (year indicates year of data collection)
  • 2009: Four months postnatal leave. The female employee may return to work earlier, but not earlier than two months after birth, and provided that she submits a medical certificate attesting to her fitness to work.
  • 2004: Four to six months depending on the working conditions and nature of the work
  • 1998: Four to six months
  • 1994: Four to six months

Extension

Where required and with the agreement of the employer, a female employee may take additional leave without pay at the end of the maternity leave.

If a female worker remains weak after the maternity leave period, she may take leave for convalescence and health rehabilitation for between five and ten days a year.
Labour Code 1994 §114
Decree No. 152/2006 - Guidance on compulsory insurance requirements §15
Law on Social Insurance 2006 §§31, 37

Leave in case of illness or complications

No right to leave in the case of pregnancy-related illness or complications identified. Rather, it is expected that where a female employee has a doctor’s certificate which states that continued employment would adversely affect her foetus, and no alternative work can be provided by her employer, a pregnant female employee may unilaterally terminate the labour contract and shall not be liable for payment of compensation stipulated in article 41 of the Labour Code. In such cases, the period in which the female employee must give notice to the employer shall depend on the period determined by the doctor.
Labour Code 1994 §112
Decree No. 23/1996 - Details and guidance on women labourers §10

RELATED TYPES OF LEAVE


Parental leave

No entitlement to parental leave identified.

Paternity leave

No independent entitlement to paternity leave identified. However, if only the father or the mother is covered by social insurance or both the father and mother are covered by social insurance and the mother dies in childbirth, the father or the person directly nursing the newborn child is entitled to the maternity regime until the child is full 4 months old.
Law on Social Insurance 2006 §31(3)
Decree No. 152/2006 - Guidance on compulsory insurance requirements §15(3)
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Scope

The scope mirrors that of maternity leave entitlements.

Qualifying conditions

The father or the mother must be covered by compulsory insurance, and the mother must have died during childbirth, for the father (or primary care-giver) to be able to assume the maternity leave benefit.
Law on Social Insurance 2006 §31(3)
Decree No. 152/2006 - Guidance on compulsory insurance requirements §15(3)

Length

Four months from the date of the child’s birth.
Law on Social Insurance 2006 §31(3)

Adoption leave

Workers adopting a child under 4 months old are entitled to adoption leave.
Labour Code 1994
Law on Social Insurance 2006

Scope

The following categories of workers are entitled to adoption leave:
a) The Vietnamese employees who work under labour contract with definite term and contract of three months and more;
b) The Government Officials and civil servants;
c) The employees of the National Defense and the employees of the Public Security;
d) The wage-paid military officers, career military personnel, professional non-commissioned officers, officers, and professional non-commissioned officers of the People’s public security; important officers under People’s Army and People’s public security who are entitled military rank allowances.
Law on Social Insurance 2006 §§2(1)(a)-(d), 27

Qualifying conditions

The worker must be adopting a child of under 4 months old to be entitled to a leave of absence for that purpose.
Labour Code 1994 §117
Law on Social Insurance 2006 §§28(1)(c), 32

Length

The employee who adopts a newly-born baby less than 4 months of age shall be entitled to maternity leave benefit until the child reaches 4 months of age.
Law on Social Insurance 2006 §32

RIGHT TO PART-TIME WORK


General provisions

No right to request or transfer to part-time work identified.

CASH BENEFITS


Maternity leave benefits

Female employees are entitled to maternity leave cash benefits in accordance with Session 2 of Chapter 3 of the Law on Social Insurance.
Law on Social Insurance 2006

Scope

The following workers are entitled to cash benefits during maternity leave:
a) Vietnamese employees who work under labour contract with definite term and contract of three months and more;
b) Government Officials and civil servants;
c) employees of the National Defense and the employees of the Public Security; and
d) wage-paid military officers, career military personnel, professional non-commissioned officers, officers, and professional.
Law on Social Insurance 2006 §§2, 27
Labour Code 1994 §141
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Qualifying conditions

Workers giving birth must have paid social insurance premiums for at least 6 months prior to childbirth to qualify for maternity leave cash benefits.
Labour Code 1994 §144
Decree No. 152/2006 - Guidance on compulsory insurance requirements §14(1)

Duration

The maternity leave benefits are for the full period of the relevant maternity leave entitlement, i.e. 4-6 months depending on the nature and conditions of work.
Labour Code 1994 §114(2)
Law on Social Insurance 2006 §§31, 35
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Amount

Workers on maternity leave are entitled to a cash benefit equivalent to 100% of the wages on which the social insurance premiums are based prior to the last 6 months of taking leave of absence, plus an additional allowance of one month’s wages.

The daily benefit for workers taking leave for convalescence and health rehabilitation for between five and ten days a year shall be equivalent to 25% of the common minimum salary (45% if they are in a rest home).
Labour Code 1994 §144
Law on Social Insurance 2006 §§35, 37
Decree No. 152/2006 - Guidance on compulsory insurance requirements §16
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Historical data (year indicates year of data collection)
  • 2009: One hundred per cent of wages. The daily benefit for workers taking leave for convalescence and health rehabilitation for between five and ten days a year shall be equivalent to 25% of the common minimum salary (45% if they are in a rest home).
  • 2004: One hundred percent
  • 1998: One hundred percent
  • 1994: One hundred percent

Financing of benefits

The maternity leave cash benefit is to be paid from social insurance funds. The social insurance funds shall be established from the following sources:
(a) The employer shall contribute a sum equivalent to fifteen (15) percent of the total balance of the wages fund;
(b) Each employee shall contribute five per cent of his wage;
(c) The State shall contribute and assist with additional funds to ensure the implementation of social insurance regimes for employees;
(d) Profits generated from the funds;
(dd) Other sources.
Law on Social Insurance 2006
Labour Code 1994 §149
Historical data (year indicates year of data collection)
  • 2009: Social insurance funds.
  • 2004: Social security
  • 1998: Social security
  • 1994: Social security

Alternative provisions

The female employee who gives birth or accepts to raise an adopted infant under 4 months of age is entitled to a lump-sum benefit equivalent to 2 months of the common minimum wage for each child.
Law on Social Insurance 2006 §34
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Parental leave benefits

No parental leave cash benefits entitlements identified.

Paternity leave benefits

No independent entitlement to paternity leave benefits identified. However, if only the father or the mother is covered by social insurance or both the father and mother are covered by social insurance and the mother dies in childbirth, the father or the person directly nursing the newborn child is entitled to the maternity leave benefit until the child is full 4 months old and to the 2 month lump-sum benfit under §34 Law on Social Insurance 2006.
Law on Social Insurance 2006 §§31(3), 34
Decree No. 152/2006 - Guidance on compulsory insurance requirements §15(3)

Scope

See scope of maternity leave benefits.

Qualifying conditions

See qualifying conditions of maternity leave benefits. Further, the mother must have died in childbirth for the father to acquire the entitlement.
Law on Social Insurance 2006 §§31(3), 35
Decree No. 152/2006 - Guidance on compulsory insurance requirements §15(3)

Duration

Up to 4 months from the child’s birth.
Law on Social Insurance 2006 §32

Amount

The level of maternity benefit is equivalent to 100 per cent of the wage on which the social insurance premiums are based prior to the last 6 months of taking leave of absence.
Law on Social Insurance 2006 §35

Financing of benefits

The maternity leave cash benefit is to be paid from social insurance funds. The social insurance funds shall be established from the following sources:
(a) The employer shall contribute a sum equivalent to fifteen (15) percent of the total balance of the wages fund;
(b) Each employee shall contribute five per cent of his wage;
(c) The State shall contribute and assist with additional funds to ensure the implementation of social insurance regimes for employees;
(d) Profits generated from the funds;
(dd) Other sources.
Law on Social Insurance 2006
Labour Code 1994 §149

Adoption leave benefits

When taking leave to adopt a newborn baby, an employee shall be entitled to social insurance benefits or to be paid by the employer a sum equal to the amount of social insurance benefits.
Labour Code 1994 §117
Law on Social Insurance 2006 §§28(1)(c), 35

Scope

The following workers are entitled to cash benefits during adoption leave:
a) Vietnamese employees who work under labour contract with definite term and contract of three months and more;
b) Government Officials and civil servants;
c) employees of the National Defense and the employees of the Public Security; and
d) wage-paid military officers, career military personnel, professional non-commissioned officers, officers, and professional.
Labour Code 1994 §117
Law on Social Insurance 2006 §§2, 27

Qualifying conditions

Workers adopting a child must have paid social insurance premiums for at least six months within twelve months prior to the adoption.
Law on Social Insurance 2006 §28

Duration

For the period of adoption leave (up to 4 months).
Law on Social Insurance 2006 §32, 35

Amount

Workers on adoption leave are entitled to a cash benefit equivalent to 100% of the wages on which the social insurance premiums are based prior to the last 6 months of taking leave of absence.

Further, a female employee who accepts to raise an adopted infant under 4 months of age is further entitled to a lump-sum benefit equivalent to 2 months of the common minimum wage for each child.
Labour Code 1994 §§117, 144
Law on Social Insurance 2006 §§32, 34, 35

Financing of benefits

The adoption leave cash benefit is to be paid from social insurance funds or by the employer.

The social insurance funds shall be established from the following sources:
(a) The employer shall contribute a sum equivalent to fifteen (15) percent of the total balance of the wages fund;
(b) Each employee shall contribute five per cent of his wage;
(c) The State shall contribute and assist with additional funds to ensure the implementation of social insurance regimes for employees;
(d) Profits generated from the funds;
(dd) Other sources.
Labour Code 1994 §§117(1), 149

MEDICAL BENEFITS


Pre-natal, childbirth and post-natal care

Female employees are entitled to receive a payment either from the social insurance system or their employer during leave to attend pregnancy examination(s).
Labour Code 1994 §117(1)

Financing of benefits

Social insurance or employer.
Labour Code 1994 §117(1)

BREASTFEEDING


Right to nursing breaks or daily reduction of hours of work

Female workers breastfeeding children under 12 months of age shall be entitled to 60 minutes of rest on every working day.
Labour Code 1994 §115(3)

Remuneration of nursing breaks

Women who take time off to breastfeed are entitled to full pay.
Labour Code 1994 §115(3)

Transfer to another post

No statutory entitlement to a transfer between posts during the breastfeeding period identified.

Nursing facilities

Enterprises which employ a high number of female employees shall be responsible for assisting the organization of child care centres and kindergartens or for assisting with a portion of the costs of female employees with children of nursing or kindergarten age.

Places where any female employees are employed must have cloakrooms, bathrooms and toilets for women.
Labour Code 1994 §116
Decree No. 23/1996 - Details and guidance on women labourers §5
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HEALTH PROTECTION


Arrangement of working time


Night work

An employer must not allow a female employee who is seven months or more pregnant or currently raising a child under twelve (12) months old to work at night.
Labour Code 1994 §115(1)

Overtime

An employer must not allow a female employee who is seven months or more pregnant or currently raising a child under twelve (12) months old to work overtime.
Labour Code 1994 §115(1)

Work on rest days

No relevant provisions identified.

Time off for medical examinations

Pregnant female labourers are entitled to take leave for five prenatal check-ups, one day for each check-up. In the envent that they live far from medical establishments or have pathological signs or abnormal pregnancies, they are entitled to a two-day leave for each prenatal check-up.

In order to attend to these check-ups, a female employee shall be entitled to social insurance benefits or to be paid by the employer a sum equal to the amount of social insurance benefits.
Law on Social Insurance 2006 §29
Labour Code 1994 §117

Leave in case of sickness of the child

A mother is entitled to take 20 working days for a child under three years of age, and 15 working days at most if the child is between three years and seven years of age.

In order to attend to a sick child under seven years of age, a female employee shall be entitled to social insurance benefits or to be paid by the employer a sum equal to the amount of social insurance benefits.
Labour Code 1994 §117(1)
Law on Social Insurance 2006 §24(1)

Other work arrangements

Women labourers who are employed in categories of work specified in Circular No. 3/1994 and who have not been transferred out as required are entitled to a reduction in working hours (by either 1 or 2 hours per day) without loss of pay.
Labour Code 1994 §§113, 115
Decrees No. 195/1994 and 109/2002 §13
Circular No. 3/1994

Dangerous or unhealthy work


General

It is not allowed to employ women laborers in heavy or dangerous duties or in jobs which require direct contact with harzardous chemicals which may affect their reproduction and child-rearing functions. Enterprises employing women in such work must prepare plans for training and gradually transferring such female to other suitable work or, if replacements are not yet available, reduce their daily work time by at least 2 hours from the required work time while still receiving full pay.

A female employee who is employed in heavy work and is in her seventh month of pregnancy shall be either transferred to lighter duties or entitled to work one hour less every day and still receive the same wage.

The categories of work subject to the prohibition and the transfer requirement are set out in Circular No. 3/1994.
Labour Code 1994 §§113(1), 115
Decree No. 23/1996 - Details and guidance on women labourers §11
Circular No. 03/1994 - Harmful working conditions and prohibited employment for women

Risk assessment


» Assessment of workplace risks

There are no risk assessment requirements specific to pregnant or breastfeeding women. However, when recruiting and organizing employees, an employer must take into account the stipulated health criteria in respect of each job, and must organize the training, instructing, and notification of employees of occupational safety and hygiene regulations, preventive measures, and possible accidents which might occur for each particular job of each employee.
Labour Code 1994 §102

» Adaptation of conditions of work

Where an enterprise is obliged to move women labourers out of jobs proscribed for women workers by Circular No. 03/1994, the enterprise must apply measures to improve the working conditions until the plan for moving them is implemented.
Labour Code 1994 §113
Decree No. 23/1996 - Details and guidance on women labourers §11

» Transfer to another post

A female employee who is 7 months pregnant and performing heavy work shall be either transferred to lighter duties or entitled to work one hour less every day and still receive the same wage.
Labour Code 1994 §115(2)
Circular No. 3/1994

» Paid/unpaid leave

No right to paid or unpaid leave for health risks arising during pregnancy identified. However, where a doctor has certified that continued employment would adversely affect her foetus, a pregnant female employee may unilaterally terminate the labour contract and shall not be liable for payment of compensation stipulated in article 41 of the Labour Code. In such cases, the period of notice that the female employee is required to give shall depend on the period determined by the doctor.
Labour Code 1994 §112

» Right to return

No express right to return to original position following pregnancy-related transfer identified.

Particular risks


» Arduous work (manual lifting, carrying, pushing or pulling of loads)

It is prohibited to employ female workers in overexerting work (average energy consumption is over than 5 Kcal/ minute and average heart beat is over 120 minute).

Further, a female employee who is 7 or more months pregnant and employed in heavy work shall be either transferred to lighter duties or entitled to work one hour less every day and still receive the same wage.
Labour Code 1994 §§113(1), 115
Decree No. 23/1996 - Details and guidance on women labourers §11
Circular No. 03/1994 - Harmful working conditions and prohibited employment for women

» Work involving exposure to biological, chemical or physical agents

An employer may not assign a female employee to work in which she would be immersed in water or in dirty water that can easily cause infection, in contact with open radiation or subjected to direct exposure to chemicals that can cause gene damage.

A female worker who is 7 or more months pregnant and working in contact with magnetic voltage higher than the permitted standards, or working in direct contact with chemicals whose accumulation in the body causes bad effects on cell metabolism, which is likely cause miscarriage, premature delivery, placenta infection, innate deformity, bad effects on mother’s milk source and pneumonic infection, shall be either transferred to lighter duties or entitled to work one hour less every day and still receive the same wage.
Labour Code 1994 §§113(1), 115
Circular No. 3/1994 - Part B(7) and (8) and Part C(2)

» Working requiring special equilibrium

It is prohibited to employ female workers in high and sheer workplaces.
Labour Code 1994 §113
Circular No. 3/1994

» Work involving physical strain (prolonged periods of sitting, standing, exposure to extreme temperatures, vibration)

A female employee who is in her seventh month of pregnancy and is employed in work involving exposure to high temperatures or high thermal radiation or vibration higher than the permitted standards, or requiring work in uncomfortable position or in places lacking oxygen, shall be either transferred to lighter duties or entitled to work one hour less every day and still receive the same wage.
Labour Code 1994 §115
Circular No. 3/1994 - Part B

NON-DISCRIMINATION AND EMPLOYMENT SECURITY


Anti-discrimination measures

Employers are strictly prohibited from conduct which is discriminatory towards a female employee or conduct which degrades the dignity and honour of a female employee. An employer must implement the principle of equality of males and females in respect of recruitment, utilization, wage increases, and wages. Furthermore, the Labour Code requires employers to give preference to a female who satisfies all recruitment criteria for a vacant position which is suitable to both males and females in an enterprise.
Law on Gender Equality 2006 §§6, 13
Labour Code 1994 §§5, 109, 111(1), 111(2)
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Prohibition of pregnancy testing

No prohibition on pregnancy testing identified.

Protection from discriminatory dismissal

The employer shall not dismiss female workers or unilaterally terminate the employment contract of female workers because of pregnancy, maternity leave or breastfeeding a child under 12 month of age, except in cases where the enterprise ceases its activities.

Further, during pregnancy, maternity leave, or raising a child under twelve (12) months old, a female worker may postpone any unilateral termination of her labour contract or period of consideration for labour discipline, except where the enterprise ceases its operation.
Labour Code 1994 §§39, 111(3)

Burden of proof

No relevant provisions identified.

Guaranteed right to return to work

At the end of normal maternity leave, or maternity leave with additional unpaid days off, a female employee shall be guaranteed employment upon her return to work.
Labour Code 1994 §117(2)

Results generated on: 22nd December 2014 at 20:48:12.
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