Nghị định 143/2018/NĐ-CP hướng dẫn Luật bảo hiểm xã hội và Luật an toàn, vệ sinh lao động về bảo hiểm xã hội bắt buộc đối với người lao động là công dân nước ngoài làm việc tại Việt Nam

DECREE

ELABORATING ON LAW ON SOCIAL INSURANCE AND LAW ON OCCUPATIONAL SAFETY AND HYGIENE REGARDING COMPULSORY SOCIAL INSURANCE FOR EMPLOYEES WHO ARE FOREIGN NATIONALS WORKING IN VIETNAM

Pursuant to the Law on Government Organization dated June 19, 2015;

Pursuant to the Law on Social Insurance dated November 20, 2014;

Pursuant to the Law on Occupational Safety and Hygiene dated June 25, 2015;

Upon the request of the Minister of Labor, War Invalids and Social Affairs;

The Government hereby promulgates the Decree elaborating on Law on Social Insurance and Law on Occupational Safety and Hygiene regarding compulsory social insurance for employees who are foreign nationals working in Vietnam.

Chapter I

GENERAL PROVISIONS

Article 1. Scope

This Decree elaborates on the Law on Social Insurance and the Law on Occupational Safety and Hygiene regarding the compulsory social insurance (SI) for employees who are foreign nationals working in Vietnam.

Article 2. Subjects of application

1. Employees who are foreign nationals working in Vietnam shall be required to participate in the compulsory SI program if they obtain work permits, practicing certificates, practicing licenses issued in Vietnam, indefinite-term employment contracts or employment contracts valid for at least one year with employers in Vietnam.

2. Employees referred to in clause 1 of this Article shall be excluded from participation in the compulsory social insurance as provided herein if:

a) they are intra-company transferees as stipulated in clause 1 Article 3 of the Government’s Decree No. 11/2016/ND-CP dated February 3, 2016, providing details of the implementation of certain articles of the Labor Code regarding foreign employees working in Vietnam.

b) they reach retirement age under clause 1 Article 187 of the Labor Code.

3. Employers participating in the compulsory social insurance, including state agencies, public service provider units, political entities, socio-political bodies, socio-political and occupational, socio-occupational and other social organizations; foreign or international bodies or organizations operating within the territory of Vietnam; enterprises, cooperatives, single-person households, cooperative associations, other organizations, and persons who are licensed to do business as per laws, shall be required to participate in the compulsory social insurance if they hire and employ personnel to work under employment contracts.

4. Entities and persons related to the compulsory social insurance for employees who are foreign nationals shall be required to participate in this compulsory SI program.

Article 3. Rights and responsibilities of employees and employers

Employees and employers prescribe in this Decree shall have full rights and responsibilities under the provisions of the Law on Social Insurance and the Law on Occupational Safety and Hygiene.

Article 4. SI complaints, allegations and penalties for SI violations

SI complaints, denunciations and actions for SI violations with respect to those entities and persons prescribed in Article 2 hereof shall be subject to provisions laid down in Chapter VIII of the Law on Social Insurance.

Chapter II

COMPULSORY SI BENEFITS

Article 5. Compulsory SI benefits

1. Employees prescribed in clause 1 Article 2 hereof shall be entitled to the following compulsory SI benefits: sickness, maternity, occupational accident, disease, retirement and death insurance benefits.

2. Compulsory SI benefits to which employees referred to in clause 1 Article 2 hereof are entitled shall vary depending on the SI participation period under the provisions of this Decree.

Article 6. Sickness insurance benefit

1. Eligibility requirements for entitlement to the sickness benefit shall be subject to Article 25 of the Law on Social Insurance.

2. Period of sick pay entitlement

a) The period of sick pay entitlement shall be subject to Article 26 of the Law on Social Insurance;

b) The period of an employee’s entitlement to the sickness benefit in connection with his/her child’s sickness shall be subject to Article 27 of the Law on Social Insurance.

3. The rate of entitlement to the sickness benefit shall be subject to Article 28 of the Law on Social Insurance.

4. The benefit of health recovery from illness shall be subject to Article 29 of the Law on Social Insurance.

Article 7. Maternity benefit

1. Eligibility requirements for entitlement to the parental benefit shall be subject to Article 31 of the Law on Social Insurance.

2. Period of entitlement to the parental benefit

a) The period of parental benefit entitlement shall be subject to Article 32 of the Law on Social Insurance;

b) The period of insurance benefit entitlement in connection with stillbirth, miscarriage or abortion due to pathological conditions shall be subject to Article 33 of the Law on Social Insurance; 

c) The period of insurance benefit entitlement in connection with childbirth shall be subject to Article 34 of the Law on Social Insurance;

d) The period of insurance benefit entitlement in connection with child adoption shall be subject to Article 36 of the Law on Social Insurance;

dd) The period of insurance benefit entitlement in connection with use of contraceptive methods shall be subject to Article 37 of the Law on Social Insurance.

3. The rate of entitlement to the parental benefit

a) The female employee who give birth to her child and the employee who adopt a child shall be entitled to the one-off benefit payment as prescribed in Article 38 of the Law on Social Insurance;

b) The rate of the parental benefit entitlement shall be subject to Article 39 of the Law on Social Insurance.

4. The female employee getting back to work ahead of the end date of parental leave shall be subject to Article 40 of the Law on Social Insurance.

5. SI benefits granted to surrogate mothers and intended mothers shall be subject to Article 35 of the Law on Social Insurance, Article 3 and Article 4 of the Government’s Decree No. 115/2015/ND-CP dated November 11, 2015 elaborating on certain articles of the Law on Social Insurance in terms of the compulsory social insurance (hereinafter referred to as Decree No. 115/2015/ND-CP). 

6. The benefit of health recovery from illness shall be subject to Article 41 of the Law on Social Insurance.

Article 8. Occupational accident and occupational disease benefit

1. Benefit entitlement requirements

a) Requirements for entitlement to the occupational accident benefit shall be subject to Article 45 of the Law on Occupational Safety and Hygiene;

b) Requirements for entitlement to the occupational disease benefit shall be subject to clause 1 Article 46 of the Law on Occupational Safety and Hygiene.

2. Assessment for determination of the level of labour capacity reduction shall be subject to Article 47 of the Law on Occupational Safety and Hygiene.

3. Occupational accident and occupational disease benefit entitlement rates

a) The one-off insurance benefit payment shall be subject to Article 48 of the Law on Occupational Safety and Hygiene;

b) The monthly insurance benefit shall be subject to clauses 1, 2, 3, 4 and clause 6 Article 49 of the Law on Occupational Safety and Hygiene.

4. Insurance benefits paid for life support accessories and orthopaedic devices shall be subject to Article 51 of the Law on Occupational Safety and Hygiene.

5. The caregiving service benefit shall be subject to Article 52 of the Law on Occupational Safety and Hygiene.

6. The insurance benefit paid for caregiving services shall be subject to Article 50 of the Law on Occupational Safety and Hygiene.

7. The insurance benefit in connection with an employee’s death due to the occupational accident or disease shall be subject to Article 53 of the Law on Occupational Safety and Hygiene and Article 10 hereof.

8. The insurance benefit paid for health recovery after treatment of disability or illness shall be subject to Article 54 of the Law on Occupational Safety and Hygiene.

9. The occupational accident or disease insurance benefit paid an employee who enters into multiple contracts with more than one employer shall be subject to Article 5 of the Government’s Decree No. 37/2016/ND-CP dated May 15, 2016 elaborating and providing guidance on implementation of certain articles of the Law on Occupational Safety and Hygiene regarding the compulsory occupational accident or disease insurance program (hereinafter referred to as Decree No. 37/2016/ND-CP).

10. The insurance benefit in connection with support for occupational changes granted to the insured employee suffering from the occupational accident or disease who returns to work shall be subject to Article 7 and Article 8 of the Decree No. 37/2016/ND-CP.

11. The insurance benefit paid for support for prevention and sharing of risks of occupational accidents or diseases shall be subject to clause 1, point a, b and point d clause 2, clause 3 Article 56 of the Law on Occupational Safety and Hygiene, and Article 11, 12, 15, 16, 19, 20, 23 and Article 24 of the Decree No. 37/2016/ND-CP.

Article 9. Retirement benefit

1. The employee specified in clause 1 Article 2 of this Decree shall be entitled to the retirement pension if he/she meets retirement pension entitlement requirements stipulated in clause 1 Article 54 of the Law on Social Insurance and Article 6 of the Decree No. 115/2015/ND-CP.

2. Entitlement rates

a) The rate of monthly retirement pension shall be subject to clause 2 Article 56 of the Law on Social Insurance, and clause 1 and clause 2 Article 7 of the Decree No. 115/2015/ND-CP;

b) The one-off benefit payment in connection with retirement shall be subject to Article 58 of the Law on Social Insurance;

c) The average rate of monthly pay as a basis for determination of the one-off retirement pension or benefit payment shall be subject to clause 2 Article 62 of the Law on Social Insurance.

3. The adjustment to the pay already used as a basis for determination of SI contributions shall be subject to clause 2 Article 63 of the Law on Social Insurance.

4. The retirement pension adjustment shall be subject to Article 57 of the Law on Social Insurance and clause 2 Article 10 of the Decree No. 115/2015/ND-CP.

5. The start date of entitlement to the retirement pension shall be subject to clause 1 and clause 3 Article 59 of the Law on Social Insurance.

6. Cases of the one-off SI benefit entitlement

If the employee defined in clause 1 Article 2 hereof wishes to receive the one-off payment, he/she shall be entitled to the one-off benefit entitlement provided that:

a) He/she reaches the prescribed age as provided in clause 1 of this Article, but has not yet reached the period of 20 years of SI contribution;

b) He/she is currently suffering from one of the deadly diseases, such as cancer, polio, cirrhosis with ascites, lapra, serious tuberculosis, HIV infection moved to the phase of AIDS disease and others regulated by the Ministry of Health;

c) He/she has fully satisfied retirement pension entitlement requirements as per clause 1 of this Article, but has discontinued residing in Vietnam;

d) His/her employment contract is terminated, or his/her labor permit, practicing certificate or practicing license expires without being permitted for renewal.

7. The rate of one-off SI entitlement shall be subject to point b clause 2 Article 60 of the Law on Social Insurance.

8. The start date of calculation of the one-off SI entitlement shall be the date specified in the social insurance agency’s decision.   The adjustment to the pay already used as a basis for calculation of the one-off SI entitlement shall be based on the date specified in the social insurance agency’s decision.

9. Retention of the period of SI contribution

If the employee after leaving his/her work has not yet satisfied retirement pension entitlement requirements referred to in clause 1 of this Article or has yet to receive the one-off benefit payment under clause 6 of this Article, he/she shall be allowed to retain his/her period of SI contributions.

10. Temporary suspension or continuation of entitlement to monthly retirement pensions or SI benefits

a) Cases of temporary suspension or continuation of entitlement to monthly retirement pensions or SI benefits shall be subject to clause 1 Article 64 of the Law on Social Insurance;

b) Entitlement to monthly retirement pensions and SI benefits shall be continued if the exiting employee returns and resides in Vietnam. In case where a decision into force of the Court abolishes another decision on declaration of missing person, in addition to continuing entitlement to retirement pensions and insurance benefits, the insured person subject to these decisions shall be allowed to track back and receive retirement pensions and SI benefits paid on a monthly basis from the date of suspension of entitlement;

c) When the social insurance agency issues a decision on temporary suspension of entitlement, they must send written notification clearly stating reasons.   Within a period of 30 days from the date of temporary suspension of insurance benefit entitlement, the social insurance agency must issue a decision to deal with entitlement to insurance benefits; in case of deciding to terminate insurance benefit entitlement, they must give clear explanations.

Article 10. Death benefit

1. Insurance benefits paid in connection with funeral and burial services shall be subject to Article 66 of the Law on Social Insurance.

2. Monthly death benefit

a) Cases of entitlement to monthly death benefits shall be subject to Article 67 of the Law on Social Insurance;

b) Rate of monthly death benefit shall be subject to Article 68 of the Law on Social Insurance.

3. One-off death benefit payment

a) Cases of entitlement to one-off death benefit payment shall be subject to Article 69 of the Law on Social Insurance;

b) In case where the employee is dead and his/her relative who is eligible for entitlement to monthly benefit payments does not reside in Vietnam, the one-off death benefit payment may be allowed;

c) Rate of one-off death benefit payment shall be subject to Article 70 of the Law on Social Insurance.

Article 11. Transfer of SI benefits for beneficiaries of monthly retirement pensions or SI benefits that no longer resides in Vietnam  

1. If the insured employee who is currently entitled to monthly retirement pensions and SI benefits is not residing in Vietnam, he/she may authorize another person to receive these amounts.  The one-off benefit payment in his/her wish shall be approved.

2. The rate of the one-off benefit payment to the employee referred to in clause 1 of this Article shall be subject to clause 2 and clause 3 Article 65 of the Law on Social Insurance.

Chapter III

SOCIAL INSURANCE FUND

Article 12. SI contribution rates and methods at the employee side

1. From January 1, 2022, the employee prescribed in clause 1 Article 2 hereof shall, on a monthly basis, make a SI contribution accounting for 8% of his/her monthly pay to the retirement and death benefit fund.

2. The employee who neither works nor receives salaries or wages for a period of at least 14 working days in each month shall not be bound to pay the SI contribution in that month.  This month shall not be taken into account to determine entitlement to SI benefits, except for parental leaves.

Article 13. SI contribution rates and methods at the employer side

1. The employer specified in clause 3 Article 2 hereof shall, on a monthly basis, make a SI contribution in proportion to the employee’s payroll in the SI payment month as follows:

a) 3% of the abovementioned payroll paid into the sickness and parental insurance benefit fund;

b) 0.5% of the abovementioned payroll paid into the occupational accident and disease benefit fund;

c) 14% of the abovementioned payroll paid into the retirement and death insurance benefit fund, in effect from January 1, 2022.

2. The employer shall not be required to pay SI contributions for their employees as provided in clause 2 Article 12 hereof.

3. Based on the capability of state budget balances for the occupational accident and disease insurance benefit fund, the Government shall consider adjusting the contribution rate as provided in point b clause 1 of this Article from January 1, 2020.

4. The employee who enters into multiple employment contracts with more than one employer and is required to participate in the compulsory SI program, both the employee and the employer shall only have to pay SI contributions as agreed upon in the first employment contract.  If wishing to participate in the occupational accident and disease insurance fund, the employee shall be required to pay SI contributions per each employment contract.

Article 14. Salary paid in the SI contribution month

Salary paid in the SI contribution month as provided in clause 1 Article 12 and clause 1 Article 13 hereof shall be subject to clause 2 and clause 3 Article 89 of the Law on Social Insurance, and clause 2 and clause 3 Article 17 of the Decree No. 115/2015/ND-CP.

Chapter IV

SOCIAL INSURANCE-RELATED PROCESSES AND PROCEDURES

Article 15. SI participation and SI benefit handling processes and procedures

1. SI participation and SI benefit handling processes and procedures prescribed in clause 1 Article 2 hereof shall be the same as those applied to Vietnamese employees and shall be subject to provisions laid down in Chapter VII of the Law on Social Insurance; Article 57, 58, 59, 60, 61 and 62 of the Law on Occupational Safety and Hygiene; Article 5 of the Decree No. 115/2015/ND-CP; Article 9, 10, 13, 14, 17, 18, 21, 22, 25 and Article 26 of the Decree No. 37/2016/ND-CP, except provisions laid down in clause 3 of this Article and Article 16 hereof.

2. If documents submitted to apply for SI participation and SI benefit handling by employees as defined in clause 1 of this Article are issued by agencies in these employees' home countries, they must be translated into Vietnamese and certified under Vietnamese laws.

3. Processes for handling of the one-off SI benefit payment

Within the duration of 10 days before the employment contract is terminated or the labor permit, practicing certificate or practicing license expires (whichever comes first), if the employee does not continue to work under an employment contract or does not apply for renewal of his/her permit, certificate or license, and he/she wishes to receive the one-off SI benefit payment, he/she shall be required to submit necessary application documents to the social insurance agency.  

Within the duration of 05 working days from the date of receipt of all required documents, the social insurance agency shall be responsible for processing employees’ applications and paying SI benefits to employees. In case of refusal, the written response clearly stating reasons must be given.

Article 16. Processes and procedures for transfer of SI benefits for beneficiaries of monthly retirement pensions or SI benefits that no longer resides in Vietnam 

1. If beneficiaries of monthly retirement pensions or SI benefits that no longer resides in Vietnam wish to receive the one-off SI benefit payment, they must submit their application to the social insurance agency.

2. Within the duration of 05 working days from the date of receipt of the application, the social insurance agency shall be responsible for issuing its decision on that application. In case of refusal, the written response clearly stating reasons must be given.

Chapter V

IMPLEMENTARY PROVISIONS

Article 17. Entry into force

1. This Decree shall be in effect on December 1, 2018.

2. SI benefits defined in Article 9 and Article 10 of this Decree shall enter into force from January 1, 2022.

3. If there is any difference between provisions of this Decree and those of international treaties of which the Socialist Republic of Vietnam is a member state, related to the same issue, the latter shall prevail.

Article 18. Implementary responsibilities

1. The Minister of Labor, War Invalids and Social Affairs shall be responsible for organizing and supervising implementation of this Decree and presiding over cooperating with ministries and sectoral administrations in recommending negotiation or conclusion of multilateral or bilateral social insurance agreements.

2. The General Director of Social Security of Vietnam shall be responsible for reviewing and issuing Vietnamese and English forms relating to SI participation and handling for foreign employees.

3. The Minister of Health shall be responsible for reviewing and issuing forms of hospital discharge notes, medical record extracts, lay-off certificates, prenatal maternity leave certificates, certificates for incapacity to take care of child after birth and certificates of examination of level of labor incapacity for handling of SI benefits of employees referred to in clause 1 Article 2 hereof.   

4. Ministers, Heads of Ministry-level agencies, Heads of Governmental bodies, and Chairpersons of People’s Committees of centrally-affiliated cities and provinces, shall be responsible for implementing this Decree./.

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