Answer:
- Is a foreign female Employee who takes maternity leave entitled to SI benefits if she has fully paid HI premium?
Under Decree No. 143/2018/ND-CP of the Government dated 15/10/2018, any foreign Employee working in Vietnam is required to contribute to SI once he or she is granted with a work permit or practice certificate/license issued by a competent State authority in Vietnam and working under a definite-term LC with the duration from 01 year to 36 months with an Employer in Vietnam. Additionally, the foreign Employee is ineligible to participate in the compulsory SI in any of the following cases:
(i) Employee transferred internally; or
(ii) Employee reaching the retirement age under the labour law;
According to the Law on SI, the female Employee must fully be paid SI for 06 months to 12 months before giving birth shall be entitled to SI benefits during the maternity leave[1]. Accordingly, pregnancy benefits are only relating to SI contribution, not HI (HI only provide medical payments for any Employee who is sick or under a medical treatment).
For this reason, any foreign female Employee who has already paid for SI for 06 months to 12 months before giving birth will be entitled to pregnancy benefits under the Laws on SI.
However, any foreign Employee falls into the subjects of application of the Labour Code so he or she is still entitled to the rights and interests of the maternity leave regime:
- Entitled to a 6 months’ leave prior to and after giving birth;[2] and
- May return to work after a leave of at least 04 months if it is certified by a competent medical facility that the early return to work is not harmful to the female Employee’ health and this must be approved by the Employer.[3] Therefore, even if the Employer allows the female Employee to return to work early, the Employer should request the female Employee to provide a written advice from a competent medical facility that the early return to work is not harmful to her health to avoid legal risks in the future.
2. Must an Employer pay maternity allowance to a foreign female Employee?
The Vietnamese labour law does not require the Employer to pay maternity allowance to the female Employee when she gives birth. For any female Employee who has paid SI premiums as aforesaid, she will be entitled to the maternity regime provided by the SI fund without entitlement to salaries paid by the Employer.
In principle, the Employer is not required to pay salary to the female Employee on maternity leave. However, since the foreign female Employee is not entitled to the maternity regime provided by the Vietnamese SI fund, the “maternity allowance” or “additional rights and interests” (if any) will depend on the agreement made earlier between the Employer (the company in Vietnam or the parent company abroad) and the foreign female Employee.
3. If the foreign female Employee returns to work after a maternity leave of 04 months, must the Employer pay her 2 months of salary for the period when she returns to work early?
When the female Employee returns to work earlier than the allowed maternity leave, the Employer shall pay her for the working days, i.e., 2 months’ salary in this case (including the allowances (if any) as agreed in the LC)[4].
[1] Article 31.1 of the Law on SI
[2]Article 139.1 of the Labour Code
[3]Article 139.4 of the Labour Code
[4]Article 139.4 of the Labour Code
