Answer:
Any Employee who works under normal conditions, are eligible for the sickness benefits according to the provisions of the labour law[1]. If the disease of the Employee is not listed as a ground for long-term treatment issued by the Ministry of Health, the maximum time that the Employee is entitled to the sickness benefits in a year is:
i. 30 days if the SI has been paid for less than 15 years; or
ii. 40 days if the SI has been paid from full 15 years to less than 30 years; or
iii. 60 days if the SI has been paid for full 30 years or more.
The number of days off to enjoy the sickness regime in a year is counted in working days, excluding public holidays, New Year holidays, weekly days off under the Labour Code. It is counted from 01 January to 31 December of a calendar year and does not depend on when the Employee starts to participate in SI.
On the other hand, when the Employee takes leave to enjoy the sickness allowance for 14 working days or more in 01 month, the Employer and the Employee are not required to pay the SI of that month and this period will not be counted to enjoy the SI[2].
The Employer has the right not to provide sickness regimes for the Employee in any of the following cases[3]:
iv. Any Employee who is sick or had an accident due to self-destruction, drunkenness or use of narcotics or drug precursors that must take leave;
v. Any Employee takes leave for the first treatment due to a labour accident or an occupational disease; and
vi. Any Employee gets sick or have accidents that are not caused by an occupational accident while on annual leave, personal leave, unpaid leave according to the Labour Code; take leave to enjoy the maternity benefits in accordance with the Law on SI.
In order to enjoy the sickness regime according to the provisions of the Law on SI, the Employee needs to prepare documents including evidence for the Employee’s medical examination, treatment, inpatient treatment, outpatient treatment, etc.[4] To enjoy the sickness benefits and fully satisfy the dossiers for enjoying the sickness benefits, the competent SI agency will settle and pay the sickness allowances to the Employee according to regulations.
If the Employee has used up the 30-day sick leave limit but continue to apply for sick leave and are able to provide all required documents to enjoy SI, the Employer cannot dismiss the Employee from taking leave under the Labour Code. However, there are a number of relevant provisions in the Labour Code as follows: (i) Article 111 of the Labour Code provides the legal basis to take annual leave with full paid; (ii) Article 30.1 (h) of the Labour Code on mutual agreement between the Employer and the Employee on suspension of the performance of the LC (possibly without payment); or (iii) Article 115.3 of the Labour Code provides ground for mutual agreement on unpaid leave.
According to the above provisions, if there are available annual leaves under the enterprise’ ILR (if any) and the Employee apply for annual leave according to Article 111 of the Labour Code, Employer must approve the application for the Employee to take annual leave (with full paid) so that they can get medical treatment. In another way, the Employee can apply for and agree with the Employer on: (i) taking unpaid leave; or (ii) suspending the performance of the LC, and the Employer has no other choice but agree to let the Employee take leave to continue treatment.
In addition, the Employer also has the right to unilaterally terminate the LC with the Employee if the Employee who works under indefinite-term LC has taken treatment for 12 consecutive months; or who work under a fixed-term LC of from 12 months to 36 months have taken treatment for 06 consecutive months; or who work under a fixed-term LC of less than 12 months have taken treatment for half of the contract term but his or her working capacity has not yet recovered[5].
[1] Article 26 of the Law on SI and Article 3 of Circular No. 59/2015/TT-BLDTBXH of the MOLISA dated 29/12/2015.
[2] Article 6.4 of Circular No. 59/2015/TT-BLDTBXH of the MOLISA dated 29/12/2015.
[3] Article 3.2 of Circular No. 59/2015/TT-BLDTBXH of the MOLISA dated 29/12/2015.
[4] Article 4 of the Procedures for Processing of Applications for SI Benefits and Payment of SI and UI benefits enclosed with Decision No. 166/QD-BHXH dated 31/01/2019.
[5] Article 36.1 (b) of the Labour Code.
