Công văn 1477/BHXH-CSXH hướng dẫn thực hiện chế độ thai sản theo quy định của Bộ luật lao động

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.

3. Period of leave for giving birth

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.

Example 1: Mrs. A on leave before giving birth from January 02, 2013; on January 05, 2013, Mrs.A 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 02, 2013 till the end of May 01, 2013 (04 months).  Till May 01, 2013, Mrs.A is still in the period of leave for giving birth as prescribed by Law on social insurance, so that Mrs. A is entitled on leave for the maternity regime till the end of July 01, 2013 (total period of enjoying the maternity regime is six months).

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

In the period of leave for maternity as stated above, female employees are entitled the maternity regime as prescribed in Article 35 of the Law on social insurance.

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.