Question 146: Are foreign female Employees who take maternity leaves entitled to social insurance benefits if they have fully paid HI premiums? Must Employers pay maternity allowances to foreign female Employees? If foreign female Employees return to work after a maternity leave of 4 months, must Employers pay 2 months’ salary for the period when they return to work early?

536

1.Are foreign female Employees who take maternity leaves entitled to SI benefits if they have fully paid HI premiums?

Pursuant to the Law on SI, the condition on which female Employees are entitled to the SI benefits is they have paid SI premiums for at least full 6 months within a period of 12 months prior to the birth[1].Accordingly, the enjoyment of SI benefits is only concerned with the SI contribution without any relation to the HI contribution (HI entitles Employees to the expenses of health examination and disease treatment).

Currently, the Vietnamese labour law only regulates to the extent that foreign Employees fall into the subjects who are required to participate in compulsory SI from 01/01/2018[2] and there is not any official guideline. There is currently a draft Decree on this issue which specifies the foreign Employees who must participate in compulsory SI, but this draft Decree has not yet been adopted. The authorities do not have any official answers about the implementation time of this Decree. Therefore, social insurance agencies have not collected SI premiums from foreigners. In the future, when the draft Decree prescribing SI for foreigners is adopted, SI agencies may retroactively collect social insurance premiums from 01/01/2018.

Therefore, currently foreign female Employees are still not entitled to maternity benefits from SI agencies because they have not participated in compulsory SI. In the future, if foreign female Employees fall into the subjects who must participate in compulsory SI and they have paid SI premiums for a sufficient time, they will be entitled to maternity benefits paid by SI agencies.

However, foreign Employees fall into the subjects of application of the Labor Code so they are still entitled to the rights and interests of the maternity leave regime:

  • Entitled to a 6 months’ leave prior to and after giving births;[3] and
  • May return to work after a leave of at least 4 months if it is certified by a competent medical facility that the early return to work is not harmful to the female Employees’ health and this must be approved by Employers.[4] Therefore, even if Employers allow Employees to return to work early, they should request Employees to provide the written advice of a competent medical facility that the early return to work is not harmful to the female Employees’ health to avoid legal risks in the future.

2. Must Employers pay maternity allowances to foreign female Employees?

The Vietnamese labour law does not require Employers to pay maternity allowances to female Employees when they give births. For female Employees who have paid SI premiums as aforesaid, they will be entitled to the maternity regime provided by the SI fund without entitlement to salaries paid by Employers.

In principle, Employers are not required to pay salaries to female Employees in the maternity leave. However, since foreign female Employees are not entitled to the maternity regime provided by the Vietnamese social insurance fund, the “maternity allowance” or “additional rights and interests” (if any) will depend on the agreement made earlier between Employers (the company in Vietnam or the parent company abroad) and foreign female Employees.

3. If foreign female Employees return to work after a maternity leave of 4 months, must Employers pay 2 months’ salary for the period when they return to work early?

When female Employees return to work earlier than the allowed maternity leave, Employers must pay them for the working days, i.e. 2 months’ salary in this case (including the allowances (if any) as agreed in LCs)[5].


[1]Article 31.1 Law on SI

[2]Articles 2.2 and 124.1 Law on SI

[3]Article 157.1 Labor Code

[4]Article 157.4 Labor Code

[5]Article 157.4 Labor Code