VIETNAM SOCIAL INSURANCE AGENCY
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SOCIALIST REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No.: 1477/BHXH-CSXH
Re.
guidance on implementation of the maternity regime in accordance with the the
Labor Code No. 10/2012/QH13
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Hanoi, April 23, 2013
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Respectfully to:
- The Provincial Social Insurance Agencies;
- The Social Insurance
Agencies of the Ministry of National Defense;
- The Social Insurance
Agencies of the People’s Public Security;
- The Social Insurance
agencies of The Cipher Board of Government.
Pursuant to provision in Article 157, clause 1 and
point b, clause 2, Article 240 of the the Labor Code No. 10/2012/QH13, of June
18, 2012 (the Labor Code); the Official Dispatch No. 338/LDTBXH-BHXH, of
January 30, 2013 of the Ministry of Labor, War Invalids and Social Affairs, the
Vietnam Social Insurance Agency guides implementation of the maternity regime
for woman employees as follows:
1. Subjects of application
Subjects of application is female employees specified
in clause 1, Article 2 of the Law on social insurance No. 71/2006/QH11, of June
29, 2006 (abbreviated to Law on social insurance).
2. Condition for enjoying the maternity regime
Condition for enjoying the maternity regime applicable to
female employees when they get pregnant as prescribed in Article 28 of the Law on social insurance.
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When female employees, who are eligible to enjoy the maternity regime, give birth, period
of leave for maternity is complied with provision in article 157 of the Labor
Code. Several
cases specifically are guided as follows:
3.1. Period of leave for giving birth from May 01,
2013
a. In case after giving birth, the newborn child dies before sixty days of age, the mother
is entitled to take leave for ninety days counting from the date of childbirth;
if the newborn child die sixty days or more of age, the mother is entitled to
take leave for thirty days counting from the date her child dies, but the leave
period shall not exceed the period of leeave for giving birth specified in
Clause 1, Article 157 of the Labor Code.
b. In case only the mother is covered by social
insurance, if 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 six months
old; both the father and mother or only the father is covered by social
insurance, if the mother dies in childbirth,
the father on leave for care of the newborn
child is entitled to the maternity regime until the child is full six months
old.
c. In case of giving birth
to twin or more infants, if there is a stillbirth, the period of leave for
enjoying the maternity regime is six months (not counting additionally the
period of leave for enjoying the maternity regime due to stillbirth); in case
all embryos are stillborn, the period of leave for enjoying the maternity
regime as prescribed in Article 30 of Law on social insurance like mother has a
stillbirth.
d. Within 60 days counted from day when female employees turn back for working after the period of
enjoying the regime for six month and the period of additional leave for case
of giving birth to twin or more infants and their helthy remain weak are
expired, they may take leave for convalescence and health rehabilitation as
prescribed in Article 17 of the Government’s Decree No. 152/2006/ND-CP,
of December 22, 2006.
e. In case the female employees wish to be on leave
before giving birth, employers must clearly inscribe time of leave before
giving birth from date …… at the note column, the set form D02-TS together with
the Decision No. 1111/QD-BHXH, of October 25, 2011 of the General Director of
Vietnam Social Insurance agency, on promulgating the Regulation on management
of social and medical premium collection; management of social insurance books
and medical insurance cards, in order to follow up and as the basis for
implementation of the maternity regime in accordance with regulation.
3.2. Period of leave for giving birth before May 01,
2013.
For female employees on leave for giving birth before
May 01, 2013, but till May 01, 2013, they are still in period of leave for
giving birth as prescribed in the Law on Social Insurance, the period for
enjoying the regime when giving birth is performed as stated in clause 1,
Article 157 of the Labor Code.
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Example 2: Mrs. B on leave before giving birth from January 01,
2013; on January 05, 2013, Mrs. B gave birth of a child, as prescribed by Law
on social insurance, the period of leave for enjoying the maternity regime is
counted from January 01, 2013 till the end of April 30, 2013 (04 months). From May 01, 2013, Mrs. B's
period of leave for giving birth was expired as prescribed by Law on social
insurance, so that Mrs. B not subjects to realization of the period of leave
for enjoying the maternity regime as prescribed is the Labor Code.
Example 3: Mrs. C on leave before giving birth from December 15,
2012; on December 20, 2012, Mrs. C gave birth of two children, as prescribed by
Law on Social Insurance, the period of leave for enjoying the maternity regime
of Mrs. C is counted from December 15, 2012 till the end of May 14, 2013 (04
months and 30 days). Thus till May 01, 2013, because Mrs. C is still in the
period of leave for giving birth as prescribed by Law on Social Insurance, Mrs.
C is entitled on leave for enjoying the maternity regime till the end of July
14, 2013 (total period of enjoying the maternity regime is seven months).
3.3. The counted period for enjoying the regime
a. The period for enjoying the maternity regime of
female employees when giving birth is counted from the practical day they are
on leave for giving birth as prescribed by the Labor Code. If they on leave
before giving birth more than 02 months, the period will be counted from the
time of sufficient 02 months before giving birth. In case of a female employee
gives birth after she has quitted work and terminated the labor relation, the
period of enjoying the regime is counted from the day of childbirth.
Example 4: Mrs. D on leave before giving birth from May 01,
2013; on July 15, 2013, Mrs. D gave birth of a child, as prescribed by Law on
social insurance, the period of leave for enjoying the maternity regime is
counted from May 16, 2013 till the end of November 15, 2013 (03 months).
b. In case of giving birth
to twin or more infants, the mother shall enjoy an additional leave of one
month for each infant from the second.
c. The period of leave for
enjoying the maternity regime of female employee when giving birth includes
public holidays, New Year holidays and weekends.
4. The enjoyed level and method of calculation
4.1. The enjoyed level
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4.2. The method of calculation
The method of calculating the maternity allowance
shall comply with the current documents guiding implementation of the Law on
Social Insurance.
In case employees in period of enjoying the maternity
allowance and the general minimum wage is adjusted, they shall be calculated
according to the general minimum wage in respective with the period applicable
to that general minimum wage; if there are odd dates, they are calculated in
accordance with guide in point 5 of the Official Dispatch No. 54/BHXH-CSXH, of
January 09, 2009, of Vietnam Social Insurance agency; if the number of odd
dates are 27 days or more, the enjoyed level of maternity allowance shall not
exceed the average level of month salary covered by social insurance of 06
adjacent months before leave and calculated according to the general minimum
wage of respective time.
5. Implementation organization
5.1. The provincial Social Insurance agencies, Social
Insurance agencies of the Ministry of National Defense, People’s Public
Security, Cipher Board of Government shall: Under their function and tasks, organize
implementation of the maternity regime in accordance with the Labor Code and
guides in this document.
5.2. Regarding maternity regime other than content
guided in this official dispatch shall comply with Law on social insurance and
the current guiding documents.
5.3. The Information center shall: Base on regulations of policy and
guide in this document, amend the program of consideration and approval for
maternity regime in accordance with regulation.
5.4. Other units of Vietnam Social Insurance agency: Under
their functions and tasks, implement the relevant contents in accordance with
regulation.
In the course of implementation, any arising problems
should be reported to Vietnam Social Insurance agency for study and guide.
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FOR THE GENERAL DIRECTOR OF
VIETNAM SOCIAL INSURANCE AGENCY DEPUTY GENERAL DIRECTOR
Do Thi Xuan Phuong