Thông tư 26/2017/TT-BLĐTBXH về quy định và hướng dẫn thực hiện chế độ bảo hiểm tai nạn lao động, bệnh nghề nghiệp bắt buộc do Bộ trưởng Bộ Lao động - Thương binh và Xã hội ban hành

CIRCULAR

ON GUIDELINES FOR STATUTORY INSURANCE FOR OCCUPATIONAL ACCIDENTS AND DISEASES

Pursuant to Law on Occupational Safety and Hygiene No. 84/2015/QH13 dated June 25, 2015;

Pursuant to Government's Decree No. 14/2017/ND-CP dated February 17, 2017 defining the functions, tasks, entitlements and organizational structure of the Ministry of Labor, War Invalids and Social Affairs;

Pursuant to Government's Decree No. 37/2016/ ND-CP dated May 15, 2016 on guidelines for the Law on Occupational Safety and Hygiene in terms of statutory insurance for occupational accidents and diseases;

At the request of Director of Department of Labor safety;

Minister of Labor, War Invalids and Social Affairs promulgates a Circular on guidelines for statutory insurance for occupational accidents and diseases.

Chapter I

GENERAL PROVISIONS

Article 1. Scope

This Circular provides guidelines for Law on Occupational Safety and Hygiene and Government's Decree No. 37/2016/ND-CP dated May 15, 2016 on guidelines for the Law on Occupational Safety and Hygiene in terms of statutory insurance for occupational accidents and diseases (hereinafter referred to as Decree No. 37/2016/ND-CP).

Article 2. Regulated entities

1. Contribution payers of insurance for occupational accidents and diseases include:

a) Officials and public employees prescribed in law on officials and public employees;

b) National defense workers, public security workers, other workers in cipher organizations; commissioned officers and professional soldiers of people's army; commissioned officers and professional non-commissioned officers; commissioned officers and technical non-commissioned officers in people's public security; workers in cipher organizations paid as soldiers; non-commissioned officers, people's army soldiers; non-commissioned officers and people's public security officers; military students, police students and cipher students that are eligible for subsistence allowances;

c) Employees working under indefinite-term labor contracts, fixed-term labor contracts, casual labor contracts paid by season or by certain job for a definite term of 3 months to under 12 months;

d) Employees working under fixed-term labor contracts of 1month to under 3 months;

dd) Managers or executives of enterprises or cooperatives with paid wages;

e) Employees working under labor contracts concluded between employers and legal representatives of people aged under 15 as prescribed by law on labor;

g) Employees prescribed in Point b Clause 2 Article 2 of Decree No 115/2015/ND-CP dated November 11, 2015 on entities prescribed in Points c, d and dd of this Clause.

2. Employees retired or no longer working jobs taking risks of occupational diseases during the monitoring period as prescribed by the Ministry of Health.

3. Employers prescribed in Clause 3 Article 2 of the Law on Social insurance.

4. Entities relevant to insurance for occupational accidents and diseases.

5. Those who have received pensions, social insurance benefit, monthly benefit and have concluded labor contracts shall comply with Clause 9, Clause 10 Article 123 of the Law on Social insurance.

Those who are prescribed in Clause 1 and 2 of this Article shall be hereinafter referred to as employees.

Chapter II

OCCUPATIONAL ACCIDENTS AND DISEASES

Article 3. Contributions to insurance fund associated with occupational accidents and diseases

1. If an employee prescribed in Clause 1 Article 2 of this Circular has been sent on study, probation, or business within Vietnam or abroad with paid wages or has been temporarily laid-off with paid wages, the employer is still required to make contributions to the insurance fund associated with occupational accidents and diseases (herein after referred to as the insurance fund) during such a period.

2. If an employee meets with an occupational accident within the first month of contribution to the insurance fund or within the first month of re-contribution to the insurance fund after an interrupted contribution period due to termination of labor contract, the employer must make contribution to the insurance fund of that month.

3. While an employee has taken leave period due to an occupational accident or occupational disease for treatment and functional rehabilitation, his/her employer must pay full wages under the labor contract prescribed in Clause 3 Article 38 of Law on Occupational Safety and Hygiene and make full contribution to social insurance funds as prescribed.

4. The employer must make full contribution to the insurance fund, including interests as prescribed associated with an employee eligible for occupational accident and disease benefit or termination of labor contract to give benefit payment to the employee in a timely manner.

Article 4. Period and monthly salary set forth calculation of occupational accident and disease benefit

1. The period set forth the calculation of occupational accident and disease benefit of an employee is total contribution period to the insurance fund by such employee, except for the overlapping contribution period of labor contracts; if the contribution period has intervals, they shall be accumulated; if a period of time that the employee held title prescribed in Decree No. 09/1998/ND-CP dated January 23, 1998 before January 1, 21998 is entitled to social insurance benefit, such period shall be also entitled to occupational accident and disease benefit.

2. If an employee has taken sickness leave prescribed in the Law on Social insurance, the loss of working time or unpaid leave for at least 14 days in a month, the employer is not required to make contribution to the insurance fund in such month, and that month is not included in the contribution period to the insurance fund except for regulations in Clause 2 Article 3 of this Circular.

3. If an employee has taken parental leave as prescribed in the Law on Social insurance for at least 14 days in a month, the employer is not required to make contribution to the insurance fund, but that month is included in the contribution period, in particular:

a) If the labor contract of an employee expires while he/she has taken parental leave, the parental leave ranging from the time off to the expiry of labor contract shall be included in the contribution period, but the parental leave after the expiry of labor contract shall not be included in the contribution period.

b) If the employee terminates the labor contract or leaves employment before the time of birth or adoption of baby aged under 6 months prescribed in Clause 4 Article 31 of the Law on Social Insurance while he/she has taken parental leave, such leave period shall not be included in the contribution period.

c) If the female employee goes back from maternity leave before its expiry as prescribed, the maternity leave ranging from the time off to the return to work before the expiry of leave shall be included in the contribution period, the maternity benefit after the return of work still remains valid as prescribed in Clause 1 or Clause 3 Article 34 of the Law on Social Insurance and the employer is still required to make equivalent contribution to the insurance fund.

d) If a father or fosterer carer, intended mother, or intended father who has taken parental leave benefit without taking time off, the employer is still required to make contribution to the insurance fund.

4. If an employee prescribed in Clause 1 Article 2 of this Circular who must suspend the contribution to the insurance fund since he was detained or imposed suspension from work is entitled to make make-up contribution as prescribed in law on social insurance, the make-up contribution period shall be included in the contribution period.

5. A contribution period is taken to receive lump-sum social insurance payout shall not be included in the period of time set forth the calculation of insurance for occupational accidents and diseases.

6. Total years of contribution to the insurance fund:

a) If an employee meets with an occupational accident, his/her total years of contribution to the insurance fund are determined until the month preceding the month of occupational accident;

b) If an employee suffers from an occupational disease, his/her total years of contribution to the insurance fund shall be determined until the month preceding the month that he/she had been working the job causing such an occupational disease.

A year means a period of 12 months.

If an employee enters into multiple labor contracts simultaneously with multiple employers, his/her overlapping contribution periods to the insurance fund of the labor contracts shall be only considered once.

7. Monthly salary set forth calculation of occupational accident or disease benefit shall be understood as the salary of month preceding the month in which the employee meets with occupational accident or suffers from occupational disease; or as the salary of the last month of contribution associated with the job causing occupational disease if the employee retired or no longer did the job at risk of occupational diseases. If an employee meets with an occupational accident within the first month of contribution to the insurance fund or within the first month of re-contribution to the insurance fund after an interrupted payment period due to termination of labor contract, the monthly salary set forth calculation of benefit shall be salary of such month. If an employee subject to pay regime stipulated by the state starts making contributions to social insurance fund before January 1, 2016, the monthly salary set forth calculation of benefit shall be determined according to his/her pay step and allowances (if any) multiplied by (x) statutory base salary at the allowance receipt time.

If an employee enters into multiple labor contracts simultaneously with multiple employers, the amount of salary set forth calculation of benefit shall be equal to total amounts of salary as basis for contribution to the insurance fund of all labor contracts in the month preceding the month of last occupational accident or disease but not exceeding 20 months' base salary.

Article 5. Occupational accident or disease benefit paid to employees undergoing first impairment assessment

1. A lump sum occupational accident or disease benefit prescribed in Clause 2 Article 48 of the Law on Occupational Safety and Hygiene shall be determined as follows:

Where:

- L_min: statutory base salary at the benefit receipt time.

- m: degree of impairment as result of occupational accident or disease (absolute number 5≤ m ≤ 30).

- L: Monthly salary set forth calculation of contribution that is prescribed in Clause 7 Article 4 of this Circular.

- t: Total years of contribution to insurance fund that is prescribed in Clause 6 Article 4 of this Circular.

Example 1: Mr. A, a public employee, met with an occupational accident on June 16, 2017. On July 5, he was discharged from the hospital after treatment of injury. Upon impairment assessment result, his degree of impairment caused by the occupational injuries is determined 20%.  Mr. A has made 10 years’ contribution to the insurance fund; his salary set forth calculation of contribution in May, 2017, subject to pay regime stipulated by the state goes with pay step of 3,66. The statutory base salary in July, 2017 is VND 1.300.000, so, Mr.A’s lump sum occupational accident benefit is calculated as follows:

- Benefit calculated according to the degree of impairment:

5 x 1.300.000 + (20 - 5) x 0,5 x 1.300.000 = VND 16.250.000

- Benefit calculated according to total years of contribution to the insurance fund:

0,5 x 3,66 x 1.300.000 + (10 - 1) x 0,3 x 3,66 x 1.300.000 = VND 15.225.000.

- Mr. A’s lump-sum benefit is:

16.250.000 + 15.225.600 = VND 31.475.600

Example 2: Mr. B met with an occupational accident on May 12, 2017. On August 10, 2017 he was discharged from the hospital after treatment of injury. Upon impairment assessment result, his degree of impairment caused by the occupational injuries is determined 20%.

Mr. B has made 1 year and 4 months of contributions to the social insurance fund from January, 2016 and has been subject to pay regime stipulated by the state, his salary set forth calculation of contribution in April 2017 goes with pay step of 2,34. The statutory base salary in August, 2017 is VND 1.300.000, so, Mr.B’s lump sum occupational accident benefit is calculated as follows:

- Benefit rate calculated according to the degree of impairment:

5 x 1.300.000 + (20 - 5) x 0.5 x 1.300.000 = VND 16.250.000

- Benefit calculated according to total years of contribution to the insurance fund: 0,5 x 2.831.400 = VND 1.415.700

 (Mr.B's contribution to social insurance in April 2017 is: 2,34 x 1.210.000 = VND 2.831.400)

- Mr. B’s lump-sum benefit is:

16.250.000 x 1.415.700 = VND 17.665.700

Example 3: Mr. D met with an occupational accident in August 2016. After treatment of injury, his degree of impairment caused by the occupational injuries is determined 20%.  Mr. D has made 14 years’ contribution to social insurance fund (in which 1 year’s contribution prescribed in Decree No. 09/ND-CP dated January 23, 1998, 2 years’ contribution to voluntary insurance fund and 1 year’s statutory contribution to statutory insurance fund associated with pension and death benefit and 10 years’ contribution to insurance fund for occupational accidents and diseases); the monthly salary set forth calculation of contribution in July, 2016 is VND 3.200.000; the statutory base salary in the month that the benefit is paid is VND 1.210.000 million per month.

Mr.D is eligible for a lump sum occupational accident benefit as follows:

- Benefit calculated according to the degree of impairment:

5 x 1.210.000 + (20-5) x 0,5 x 1.210.000 = VND 15.125.000

- Benefit calculated according to total years of contribution to the insurance fund:

0.5 x 3.200.000 + (10 - 1) x 0,3 x 3.200.000 = VND 10.240.000

- Mr. D’s lump-sum benefit is:

15.125.000 + 10.240.000 = VND 25.365.000.

Example 4: Mr. B has made contributions to the insurance fund at enterprise X from September 2016 and met with an occupational accident on September 16, 2016. After treatment of injuries, he underwent an impairment assessment and the Medical Examination Council gave a conclusion that his degree of impairment is 20%, his monthly salary set forth calculation of contribution in September 2016 is VND 3.200.000. The statutory base salary in the month that the benefit is paid is VND 1.210.000 per month. Mr.B is eligible for a lump sum occupational accident benefit as follows:

- Benefit calculated according to the degree of impairment:

5 x 1.210.000 + (20-5) x 0,5 x 1.210.000 = VND 15.125.000

- Benefit calculated according to total years of contribution to the insurance fund: 0,5 x 3.200.000 = VND 1.600.000

- Mr. B’s lump-sum benefit is:

15.125.000 + 1.600.000 = VND 16.725.000

2. Monthly occupational accident or disease benefit prescribed in Clause 2 Article 49 of the Law on Occupational Safety and Hygiene shall be determined as follows:

Where:

- L_min: statutory base salary at the benefit receipt time.

- m: degree of impairment as result of occupational accident or disease (absolute number 31≤ m ≤ 100).

- L: Monthly salary set forth calculation of contribution that is prescribed in Clause 7 Article 4 of this Circular.

- t: total years of contribution to insurance fund that is prescribed in Clause 6 Article 4 of this Circular.

Example 5: Mr. E met with a traffic accident on the way to a meeting in August 2016. After treatment of injury, his degree of impairment caused by the occupational injuries is determined 40%.

Mr. E has made 12 years’ contribution to the insurance fund, his salary set forth calculation of contribution in July 2016 is VND 3.400.000. The statutory base salary in the month that the benefit is paid is VND 1.210.000 per month. Mr.E is eligible for monthly occupational accident benefit as follows:

- Benefit calculated according to the degree of impairment:

0,3 x 1.210.000 + (40-31) x 0,02 x 1,210,000 = VND 580,800

- Benefit calculated according to total years of contribution to the insurance fund:

0,005 x 3.400.000 + (12-1) x 0,003 x 3.400.000 = VND 129.200

- Mr.E’s monthly benefit is:

580.800 VND/month + 129.200 VND/month = 710.000 VND/month.

Example 6: Mr. M has made contributions to the insurance fund at enterprise X from September 2016 and met with an occupational accident on September 5, 2016. After treatment of injuries, he underwent an impairment assessment and the Medical Examination Council gave a conclusion that his degree of impairment is 40%, his monthly salary set forth calculation of contribution in September 2016 is VND 3.400,000. The statutory base salary in the month that the benefit is paid is VND 1.210.000 per month. Mr.M is eligible for monthly occupational accident benefit as follows:

- Benefit calculated according to the degree of impairment:

0,3 x 1.210.000 + (40-31) x 0,02 x 1,210,000 = 580,800 VND/month

- Benefit calculated according to total years of contribution to the insurance fund: 0,005 x 3.400.000 = 17.000 VND/month

- Mr.E’s monthly benefit is:

580.800 VND/month + 17.000 VND/month = 597.800 VND/month

Example 7: Mr.Q has made contributions to the insurance fund at enterprise X from January 2015 to December, 2017 with the salary of VND 17.000.000 per month. He subsequently has made contributions to the insurance fund at enterprise Z from January 2017 to December 2018 with the salary of VND 5.000.000 per month.

On January 9, 2017, Mr.Q met with an occupational accident. Accordingly, enterprise Z is still required to make a matching contribution to the insurance fund in January 2017 together with Mr.Q and period of time and salary set forth calculation of benefit according to Mr.Q’s total years of contribution to the insurance fund as follows:

- The period of time set forth calculation of benefit only ranges from January 2015 to December 2016.

- The salary set forth calculation of benefit according to Mr.Q’s total years of contribution to the insurance fund is equal to:

+ total salary of December 2016 at enterprise X and salary of January 2017 at enterprise Z in the event that Mr. Q met with the occupational accident at enterprise Z;

+ salary of December 2016 at enterprise X in the event that Mr. Q met with the occupational accident at enterprise X.

Example 8: Mr.A has entered into a labor contract and applied for contribution to the insurance fund at enterprise X. Concurrently, Mr. A also has entered into a labor contract and applied for contribution to the insurance fund at enterprise Y. In August 2016, on the way to a meeting as designated by the enterprise X, Mr. A met with a traffic accident. After treatment of injuries, he underwent an impairment assessment which indicates that his degree of impairment is 40%.

Mr. A has made 12 years’ contribution to the insurance fund, his total salary set forth calculation of contribution at both enterprise X and enterprise Y is VND 13.400.000. The statutory base salary in the month that the benefit is paid is VND 1.210.000 per month. Mr.A is eligible for monthly occupational accident benefit as follows:

- Benefit calculated according to the degree of impairment = 0,3 x 1.210.000 + (40 - 31) x 0,02 x 1.210.000 = 580.800 VND/month.

- Benefit calculated according to total years of contribution to the insurance fund = 0,005 x 13.400.000 + (12 - 1) x 0,003 x 13.400.000 = 509.200 VND/month.

- Monthly benefit is 580.800 + 509.200 = 1.090.000 VND/month. Enterprise X shall file a claim on Mr. A's occupational accident benefit to the social security agency to which the contributions have been paid.

Example 9: In August 2016, Mr.A has entered into a labor contract and applied for contribution to the insurance fund at both enterprise X and enterprise Y. On August 20, 2016, on the way to a meeting as designated by the enterprise X, Mr. A met with a traffic accident. After treatment of injuries, he underwent an impairment assessment which indicates that his degree of impairment is 40%.

Mr. A’s total salary set forth calculation of contribution at both enterprise X and enterprise Y is VND 13.400.000. It is assumed that the statutory base salary in the month that the benefit is paid is VND 1.210.000 per month. Mr. A is eligible for monthly occupational accident benefit as follows:

- Benefit calculated according to the degree of impairment = 0,3 x 1.210.000 + (40 - 31) x 0,02 x 1.210.000 = 580.800 VND/month.

- Benefit calculated according to total years of contribution to the insurance fund = 0,005 x 13.400.000 = 67.000 VND/month.

- Monthly benefit is 580.800 + 67.000 = 647.800 VND/month.

Enterprise X shall file a claim on Mr. A’s occupational accident benefit with the social security agency to which the contributions have been paid.

3. If a person who has been on monthly benefit intends to go aboard and applies for a lump-sum benefit, the lump-sum benefit shall be equal to 3 months of current benefit amount.

Example 10: Mrs. A has been on monthly benefit of VND 2.000.000 (as recorded in December 2016). In January 2017, Mrs. A plans to reside abroad, she is entitled to receive a lump-sum benefit equal to: 3 x 2.000.000 = VND 6.000.000.

4. In a case where an employee is infected with HIV/AIDS as a result of occupational accident or risks from work activity, he/she is entitled to receive monthly benefit associated with occupational disease equal to benefit to be paid to any employee suffering at least 61% impairment as result of an occupational disease without medical assessment.

If the medical assessment result shows that the employee suffers higher degree of impairment, the amount of benefit shall be calculated according to the degree of impairment assessed by Medical Examination Council and the claim on occupational disease benefit in such situation must have a medical assessment report.

Article 6. Payment of benefit to employees undergoing re-assessment after occurrence of relapse

1. With regard to employees who have been on benefit as prescribed in law on social insurance before January 1, 2007:

a) In case of an employee who had received a lump-sum benefit as prescribed in law on social insurance before January 1, 2007:

- If the degree of impairment shown in re-assessment result is under 31%, the employee shall be entitled to a lump-sum benefit stipulated as follows:

- If the degree of impairment shown in re-assessment result is at least 31%, the employee shall be entitled to monthly benefit. The amount of benefit is prescribed in Point b of this Clause.

Example 11: Mr. B met with an occupational accident in October 2006 with degree of impairment 21%, he had received a lump-sum benefit of VND 5.400.000. In March 2017, he relapsed into bodily injury, his new degree of impairment as shown in the re-assessment result is 45%. Accordingly, his degree of impairment is classified into the category 2, which means that he is eligible for 0,6 of statutory base salary.

It is assumed that the statutory base salary in the month that the Medical Examination Council gives re-assessment result is VND 1.210.000 per month. Mr. E’s monthly benefit is: 0,6 x 1.210.000 = 720.000 VND/month.

b) With regard to an employee who has been on monthly benefit as prescribed in law on social insurance before January 1, 2007 and underwent a re-assessment, his/her monthly benefit according to the new degree of impairment is stipulated as follows:

2. In case of an employee who had received a lump-sum benefit from January 1, 2007:

a) Upon the re-assessment, if his/her new degree of impairment shows an increase but under 31%, he/she shall qualify for a lump-sum benefit. The lump-sum benefit shall be equal to the benefit calculated according to the new degree of impairment minus (-) the benefit calculated according to the former degree of impairment.

Example 12: Mr. C met with an occupational accident in August 2013 with degree of impairment 20%. In October 2016, he relapsed into bodily injury, his new degree of impairment as shown in the re-assessment result is 30%. The statutory base salary in the month that the Medical Examination Council gives re-assessment result is VND 1.210.000 per month. Mr. C's lump-sum benefit is:

{5 x L_min + (30 - 5) x 0,5 x L_min} - {5 x L_min + (20 - 5) x 0,5 x L_min} =

= (5 x L_min + 12,5 x L_min) - (5 x L_min + 7,5 x L_min) = 5 x L_min =

= 5 x 1.210.000 VND = 6.050.000 VND

Where:

- L_min: statutory base salary at the benefit receipt time.

b) Upon the re-assessment, if his/her new degree of impairment shows at least 31%, he/she shall qualify for monthly benefit, in which the benefit shall be calculated according to the new degree of impairment; the benefit calculated according to total years of contribution to insurance fund and the salary equivalent to the calculation of previous lump-sum benefit.

Example 13: Mr. P met with an occupational accident in August 2016 with degree of impairment 20%. Until the month of occupational accident, Mr. P has made 10 years’ contribution to the insurance fund and the salary set forth calculation of contribution of the month preceding the month of occupational accident is VND 3.500.000. In October 2018, he relapsed into bodily injury, his new degree of impairment as shown in the re-assessment result is 32%. It is assumed that the statutory base salary in the month that the Medical Examination Council gives re-assessment result is VND 1.300.000 per month. Mr. P is entitled to receive monthly benefit as follows:

Where:

- L_min: statutory base salary at the benefit receipt time.

- m: degree of impairment as result of occupational accident or disease (absolute number 31≤ m ≤ 100).

- L: Monthly salary set forth calculation of contribution is prescribed in Clause 7 Article 4 of this Circular.

- t: total years of contribution to insurance fund that is prescribed in Clause 6 Article 4 of this Circular.

- Benefit calculated according to the new degree of impairment:

0,3 x L_min + (32 - 31) x 0,02 x L_min = 0,3 x L_min + 0,02 x L_min = 0,32 x L_min
= 0,32 x 1.300.000 = VND 416.000

- Benefit calculated according to total years’ contribution to the insurance fund is:

0,005 x L + (10 - 1) x 0,003 x L = 0,005 x L + 0,027 x L = 0,032 x L
= 0,032 x 3.500.000 = VND 112.000

- Mr. P’s monthly benefit is:

416.000 + 112.000 = VND 528.000

3. In case of an employee who has received monthly benefit from January 1, 2007 onwards, if his/her degree of impairment, upon a re-assessment, varies, his/her new monthly benefit shall be calculated as prescribed in Clause 2 Article 5 of this Circular, in which the benefit shall be calculated according to the new degree of impairment. Benefit calculated according to total years’ contribution to the insurance fund is the current amount of benefit.

Example 14: Mr. D met with an occupational accident in September 2016 with the degree of impairment 40%, then, he has been on monthly benefit. His benefit calculated according to total years of contribution to the insurance fund is VND 112.000 per month. In November 2018, he relapsed into bodily injury, his new degree of impairment as shown in the re-assessment result is 45%. It is assumed that the statutory base salary in the month that the Medical Examination Council gives re-assessment result is VND 1.300.000 per month.

Mr. D is entitled to receive monthly benefit as follows:

Where:

- Benefit calculated according to the new degree of impairment is:

0,3 x 1.300.000+ (45-31) x 0,02 x 1.300.000= 754.000 VND/month

- Benefit calculated according to total years of contribution to the insurance fund is 112.000 VND/month.

- Mr. D’s new monthly benefit is:

754.000 + 112.000 = VND 866.000

4. If an employee who met with an occupational accident or suffered from an occupational disease and whose degree of impairment is not qualified for benefit at first relapses into bodily injury and his/her new degree of impairment shows that he/she qualifies for the benefit, his/her amount of benefit shall be calculated according to Clause 1 and Clause 2 Article 5.

5. The benefit paid to the employee undergoing the re-assessment of degree of impairment prescribed in Clause 2 and Clause 3 of this Article shall be calculated according to the statutory base salary in the month that Medical Examination Council gives the re-assessment result.

6. A claim on benefit associated with employee undergoing re-assessment after occurrence of relapse includes:

a) A social insurance book, if the employee's degree of impairment is not qualified for benefit; a valid copy (a certified true copy from master register or original or a copy along with original for comparison) of claim on benefit that has been filed before.

c) An occupational accident investigation report or a measurement report indicating that the environment has harmful factors, if the employee whose degree of impairment under the previous assessment is not qualified for benefit was discharged from hospital before July 1, 2016; in a case where the employee met with a traffic accident which was considered as occupational accident, the one of following documents must be also provided: A scene examination report, a traffic accident scene diagram or a traffic accident report of police authority or military criminal investigation body.

d) The latest degree of impairment assessment report issued by Medical Examination Council, if the employee’s previous degree of impairment was not qualified for benefit.

dd) A degree of impairment re-assessment report after occurrence of relapse issued by Medical Examination Council.

e) An indication issued by the health facility or orthopaedic and functional rehabilitation facility in accordance with the laws and regulations on supply of daily living aids, and orthopaedic devices (if any).

Article 7. Payment of benefit to employees received lump-sum benefit or on monthly benefit but having new occupational accidents or diseases or being infected with HIV as result of occupation risks or accidents under general assessment

1. If an employee who received a lump-sum benefit or has been on monthly benefit has new occupational accident or disease at a point of time from January 1, 2007 onwards, his/her new benefit shall be calculated depending on the new degree of impairment determined in a general assessment, in which:

a) Benefit calculated according to the new degree of impairment shall be determined according to the statutory base salary in the month that Medical Examination Council gives the general assessment result or a certificate of HIV infection is issued.

b) Benefit calculated according to total years of contribution to the insurance fund after general assessment shall be determined according to total years of contribution to the insurance fund until the last time of occupational accident or disease and the salary set forth calculation of contribution prescribed in Clause 7 Article 4 of this Circular of the last time of occupational accident or disease.

Example 15: Mrs. K has made contributions to the insurance fund at enterprise X from January 1 2015 to October  2017 with the salary of VND 15.000.000 per month. On July 9, 2016, Mrs. K met with an occupational accident, Medical Examination Council gave the assessment result that her degree of impairment was 20%, Mrs. K received a lump-sum occupational accident benefit. From January 1, 2017 to December 31, 2017, Mrs. K entered into a labor contract and has made contributions to the insurance fund with enterprise Z with the salary VND 4.000.000 per month. On March 21, 2017, Mrs. met with an occupational accident again, Medical Examination Council gives the general assessment result that her degree of impairment is 27%.

- Benefit calculated according to the degree of impairment after general assessment is:

5 x 1.210.000 + (27- 5) x 0,5 x 1.210.000 = VND 19.360.000

- Benefit calculated according to total period of time of contribution to the insurance fund:

+ Period of time set forth calculation of benefit is: 28 months from January 2015 to February 2017 and from January 2017 to February 2017. There is an overlapping period of time ranging from January 2017 to February 2017, therefore, the period of time set forth calculation of benefit is 26 months, equivalent to 2 years and 2 months.

+ Salary set forth calculation of benefit is: 15.000.000 + 4.000.000 = VND 19.000.000

+ Benefit calculated according to total years of contribution to the insurance fund is:

0,5 x 19.000.000 + (2-1) x 0,3 x 19.000.000 = VND 15.200.000

- New benefit is:

19.360.000 + 15.200.000 = VND 34.560.000

Example 16: Mr. G met with an occupational accident in August 2016 with degree of impairment 40%. In October 2016 Mr. G met with an occupational accident against and was hospitalized for treatment. After treatment, in November 2016, Mr. G was discharged from the hospital, and in December 2016, he underwent general assessment and Medical Examination Council gave the result that his new degree of impairment is 45%. Until September 2016, Mr. G has made 13 years’ contribution to the insurance fund, his salary set forth calculation of contribution in September 2016 is VND 3,680,000. It is assumed that the statutory base salary in the month that the Medical Examination Council gives the general assessment result is VND 1.210.000 per month. Mr. G’s monthly benefit is calculated as follows:

- Benefit calculated according to the degree of impairment upon general assessment is:

0,3 x 1.210.000 + (45 - 31) x 0,02 x 1.210.000 = 701.800 VND/month

- Benefit calculated according to total years of contribution to the insurance fund is:

0,005 x 3.680.000 + (13 - 1) x 0,003 x 3.680.000 = 150.880 VND/month

- Mr. G’s new monthly benefit is:

VND 701.800 /month+ VND 150.880/month= 852.680 VND/month

Example 17: Mr. A has made contributions to the insurance fund at enterprise X from January 1 2013 to October 2015 with the salary of VND 15.000.000 per month. On March 1, 2014, he met with an occupational accident, his degree of impairment was determined 45% by Medical Examination Council, accordingly, he has been on monthly occupational accident benefit. He has made contributions to the insurance fund at enterprise Y from January 1 2016 to December 2016 with the salary of VND 24.200.000 per month. Concurrently, he entered into a labor contract and has made contributions to the insurance fund with enterprise Z from July 2016 to December 2016 with the salary VND 3.000.000 per month.

On December 1, 2016, he met with an occupational accident again, his degree of impairment was determined 58% by Medical Examination Council. It is assumed that the statutory base salary in the month that the Medical Examination Council gives re-assessment result is VND 1.210.000 per month. Mr. A’s monthly benefit is calculated as follows:

- Benefit calculated according to the degree of impairment upon general assessment is:

0,3 x 1.210.000 + (58-31) x 0,02 x 1.210.000= 1.016.400 VND/month

- Benefit calculated according to total years of contribution to the insurance fund is:

+ Salary set forth calculation of benefit is:

24.200.000 + 3.000.000 = VND 27.200.000, which is greater than 20 months' statutory base salary, therefore, 20 months' statutory base salary shall prevail, equivalent to VND 24.200.000.

+ Period of time eligible for benefit is: 34 months (from January 1, 2013 to October 2015) +11 months (from January 2016 to November 2016) = 45 months = 3 years 9 months

Benefit calculated according to total years of contribution to the insurance fund is:

0.005 x 24.200.000 + (3-1) x 0.003 x 24.200.000 = VND 266.200

- New benefit is:

1.016.400 + 266.200 = 1.282.600 VND/month

2. An employee had an occupational accident or disease when contributing the insurance fund with multiple labor contracts and has received a certain amount of benefit; then, he had an occupational accident or disease again with less labor contracts but the benefit calculated according to total years of contributions to the insurance fund prescribed in Clause 1 of this Article is less than the current amount of benefit, the current amount of benefit shall remain.

Example 18: In case of Mr. A specified in example 17, it is assumed that the labor contract concluded between Mr. A and enterprise Z from July 1 2016 to December 2018 agrees the salary VND 3.000.000 per month.

On March 1, 2018, he met with an occupational accident again, his degree of impairment was determined 70% by Medical Examination Council. It is assumed that the statutory base salary in the month that the Medical Examination Council gives re-assessment result is VND 1.210.000 per month. Mr. A’s monthly benefit is calculated as follows:

- Mr. A's current benefit is: 1.282.600 VND/month

- Benefit calculated according to the degree of impairment upon general assessment is:

0,3 x 1.210.000 + (70-31) x 0,02 x 1.210.000= 1.306.800 VND/month

- + Period of time set forth calculation of benefit is: 34 months (from January 1, 2013 to October 2015) +26 months (from January 2016 to February 2018) = 60 months = 5 years

+ Salary set forth calculation of benefit is: VND 3.000.000.

+ Period of time set forth calculation of new benefit is: 5 years.

Benefit calculated according to total years of contribution to the insurance fund is:

0.005 x 3.000.000 + (5 - 1) x 0.003 x 3.000.000 = VND 51.000.

The new benefit calculated according to total years’ contribution to the insurance fund is less than the current benefit, therefore, the current benefit of VND 266.200 shall prevail.

- New benefit is:

1.306.800 + 266.200 = VND 1.573.000

3. The benefit receipt time shall begin from the month that the employee's treatment ends he/she is discharge from the hospital of the last occupational accident or disease or the month that the Medical Examination Council gives the assessment result in case where the employee has not received inpatient care or it is unable to identify the ending of treatment or patient discharge.

4. A claim on benefit associated with employee undergoing general assessment as a result of having occupational accident or disease again includes:

a) A social insurance book; a valid copy (a certified true copy from master register or original or a copy along with original for comparison) of claim on benefit that has been filed before.

b) A hospital discharge note or copy of medical record after ending of treatment of the last inpatient care.

c) An occupational accident investigation report; if the employee meets with a traffic accident which is considered as occupational accident, one of the following documents is also required: A scene examination report, a traffic accident scene diagram or a traffic accident report of police authority or military criminal investigation body in case of an employee who ends treatment and is discharged from hospital before July 1, 2016 but has not undergone an impairment assessment.

d) A measurement report showing the environment has harmful factors in case of an employee who ends treatment and is discharged from the hospital before July 1, 2016 but has not undergone an impairment assessment.

dd) A general assessment result issued by Medical Examination Council; if the employee's previous degree of impairment has not been qualified for benefit, such an assessment result is also required.

e) A claim on occupational accident or disease benefit using the prescribed form as to the last occupational accident or disease; if the claim on benefit made for the previous occupational accident or disease has not been settled, a claim made by the employer associated with occurrence of previous occupational accident or disease is also required.

g) An indication issued by the health facility or orthopaedic and functional rehabilitation facility in accordance with the laws and regulations on supply of daily living aids, and orthopaedic devices (if any).

Article 8. Funding for purchase of daily living aids, orthopaedic devices and shelf life

1. An employee who had occupational accident or disease resulting in injuries to body functions is, depending on his/her current state, allocated fund to buy daily living aids and orthopaedic devices as indicated by a health facility or orthopaedic and functional rehabilitation facility affiliated to Labor, War Invalids and Social Affairs agency or a hospital of province or higher level (hereinafter referred to as health facility or orthopaedic and functional rehabilitation facility).

2. Categories of daily living aids, orthopaedic devices and grant period

a) Prosthetic arms;

b) plastic arm braces;

c) Prosthetic legs;

d) plastic leg braces;

dd) a pair of orthopaedic shoes or sandals;

e) Thigh splints, leg splints;

g) Trunk orthosis;

h) Wheelchairs or lever powered wheelchairs or alternative facilities with equivalent costs;

i) Crutches;

k) Hearing aids;

l) Ocular prosthesis;

m) Making dentures by number of missing teeth; removable dentures;

n) Purchase of daily living aids in case of hemiplegia, diplegia, or psychotic agitation.

If the employee both suffers from psychotic agitation and hemiplegia or diplegia, he/she is only entitled to receive fund once to buy daily living aids;

o) If both wheelchair/lever powered wheelchair and prosthetic legs/foot are provided, the shelf life of each facility is 6 years.

3. Funding for purchase of daily living aids, orthopaedic devices (including auxiliary articles and maintenance kits) and shelf life are stipulated in Appendix I issued herewith.

4. The funding for purchase of daily living aids, orthopaedic devices (including auxiliary articles and maintenance kits) for the whole shelf life shall be provided once.

Article 9. Provision of funding for purchase of daily living aids, orthopaedic devices

1. A person eligible for daily living aids or orthopaedic devices shall submit an indication of the orthopaedic and functional rehabilitation facility as prescribed in Clause 1 Article 8 of this Circular to the competent social security agency as to use of daily living aids or orthopaedic devices.

2. Social security agency

a) Within 10 working days from the date on which valid documents prescribed in Clause 1 of this Article are received, the social security agency shall verify documentation and consider approving the funding for daily living aids or orthopaedic devices within shelf life or service life to the applicant.

b) If the documents are considered invalid, it shall provide explanation in writing within 3 working days enclosed with submitted documentation.

Article 10. Procedures and claims on occupational disease benefit as to employees retired or no longer working jobs taking risks of occupational diseases

1. If an employee retired or left employment during the monitoring period , he/she shall apply for examination of occupational disease enclosed with personal health record to an occupational disease examination facility; if an occupational disease is found thereafter, the facility shall complete the employee’s occupational disease examination record and equivalent result as prescribed by the Ministry of Health.

2. If the employee transfers to a job not taking risks of occupational diseases, he/she shall apply for examination of occupational disease enclosed with personal health record to an occupational disease examination facility; if the occupational disease is found thereafter, the employee or current employer shall complete the employee’s occupational disease examination record according to the employee's personal health record.

The insurance fund shall pay all occupational diseases examination costs in the circumstances prescribed in Clause 1 and Clause 2 of this Article after payment of health insurance.

3. After completing the occupational disease examination record, the employee shall, in person or with recommendation of the former or current employer, apply for assessment of impairment.

4. If the assessment result shows a degree of impairment of at least 5%, the employee shall file a claim on occupational disease benefit as prescribed in Clause 3 Article 6 of Decree No. 37/2016/ND-CP to the social security agency of province. The form of claim on occupational disease benefit is prescribed in Clause 4 Article 58 of Law on Occupational Safety and Hygiene.

5. Benefit receipt time shall commence from the month that Medical Examination Council gives the assessment result.

Example 19: Mr. T has made contributions to the insurance fund at enterprise H as a stone mine worker from January 1990 to June 2016 and as an officer worker from July 2016. He suffered from silicosis as a result of exposure to working conditions as a stone mine worker. In July 2017, he underwent an impairment assessment and Medical Examination Council gives the result that his degree of impairment is 20% as a result of silicosis.

Accordingly, the monthly salary set forth calculation of benefit according to contribution period shall be determined as equal to the monthly salary set forth calculation of contribution in June 2016; benefit receipt time will commence from July 2017.

Article 11. Circumstances of ineligibility for occupational accident benefit and occupational accident or disease benefit paid to special circumstances

Circumstances of ineligibility for occupational accident benefit and benefit paid to special circumstances prescribed in Article 40:

1. If an employee makes a claim on occupational accident benefit after retiring, the employer relevant to the employee’s occupational accident shall file the claim to the social security agency that has paid pension; in this case, the claim shall exclude the social insurance book. If the employer has been being dissolved, the dissolution council shall make such a claim; if the employer was dissolved, Its superior agency shall make such a claim.

2. If an employee had an occupational accident or disease while he/she was performing a duty assigned by an employer among employers with which he/she entered into multiple labor contracts, such employer shall make a claim on occupational accident or disease benefit.

3. If an employee met with a traffic accident on the way from an employer to another employer which is considered as occupational accident since he/she entered into multiple labor contracts with multiple employers, the latter employer shall be determined as employer associated with the employee’s occupational accident, such employer shall make a claim on occupational accident benefit.

4. Benefit claimed for an employee who had an accident caused by pathological signs in the course of work shall be paid according to the occupational accident investigation report issued by occupational accident investigation delegation with approval of inspectorate of Department of Labor, War Invalids and Social Affairs.

5. If an employee who has not made contributions to the insurance fund has an occupational accident or disease, the employer shall pay the benefit to the employee as prescribed in Clause 4 Article 39 of Law on Occupational Safety and Hygiene.

6. Circumstances of ineligibility for occupational accident benefit

a) An accident by reason of a conflict between the victim and the attacker, which is unrelated to the course of work;

b) An accident owning the fact that the employee intentionally destroyed his/her health;

c) An accident involving abuse of alcohol or drugs or drug precursors enumerated in the Appendix issued together with Government's Decree No. 82/2013/ND-CP dated July 19, 2013 on promulgation of drugs and drug precursors and Government's Decree No. 126/2015/ ND-CP dated December 9, 2015 on amendments to the Appendix of drugs and precursors issued together with Government's Decree No. 82/2013/ ND-CP dated July 19, 2013 on promulgation of lists of drugs and precursors or other addictive substances in contravention of laws and regulations.

Chapter III

FINANCIAL ASSISTANCE FROM THE INSURANCE FUND

Article 12. Financial plans, management and statements

1. Annually, according to the estimate of revenue from the insurance fund, the Ministry of Labor, War Invalids and Social Affairs shall plan prevention and risk sharing associated with occupational accidents and diseases, provided not exceeding 10% of the revenue from the insurance fund.

2. Social Security of the Ministry of National Defense, Social Security of People's Public Security shall plan prevention and risk sharing associated with occupational accidents and diseases in the Ministry of National Defense and People's Public Security provided not exceeding 10% of the revenue from the insurance under management of Social Security of the Ministry of National Defense, Social Security of People's Public Security.

3. Annually, Vietnam Social Security shall make a consolidated report on financial assistance in prevention and risk sharing associated with occupational accidents and diseases in the year.

Article 13. Determination of trainees and plans for financial assistance in occupational safety and hygiene training

Procedures for approving proposed trainees and plan for financial assistance in occupational safety and hygiene training prescribed in Article 36 of Decree No. 37/2016/ND-CP shall be carried out as follows:

1. Before June 10, each employer seeking financial assistance in occupational safety and hygiene training for subsequent year shall file a document (using form No. II-01 of Appendix II) enclosed with a list of proposed trainees (using form No. II – 02 of Appendix II) to Department of Labor, War Invalids and Social Affairs of province where the employee is headquartered.

2. Before July 20, Department of Labor, War Invalids and Social Affairs shall consolidate proposals of employers, choose qualified trainees as prescribed, in conformity with local conditions and make a grand schedule of financial assistance in occupational safety and hygiene in the subsequent year and send it to the Bureau of Labor Safety affiliated to the Ministry of Labor, War Invalids and Social Affairs (using form No. II-03 of Appendix II).

3. Bureau of Labor Safety shall take charge and cooperate with relevant agencies in consolidating financial assistance in occupational safety and hygiene training of provinces. After 5 working days, from the date on which Vietnam Social Security receives a decision on revenue and expenditure estimate from the Prime Minister, Bureau of Labor Safety shall cooperate with Vietnam Social Security, according to expenditure estimate of the insurance fund in the planning year, in requesting the Ministry of Labor, War Invalids and Social Affairs to decide financial assistance provided for provinces in occupational safety and hygiene training, in industries requiring prevention of occupational accidents and diseases, and send the estimates to Vietnam Social Security in order for Vietnam Social Security to assign estimates to Social Security of provinces.

Article 14. Initiation of occupational safety and hygiene training

1. According to the approval for financial assistance in occupational safety and hygiene training of the Ministry of Labor, War Invalids and Social Affairs, the Department of Labor, War Invalids and Social Affairs shall give notices to business entities in industries requiring prevention of occupational accidents and diseases in accordance with guidance of the Ministry of Labor, War Invalids and Social Affairs.

2. According to priority trainees in accordance with guidance of the Ministry of Labor, War Invalids and Social Affairs and actual capacity of enterprises or occupational safety and hygiene training providers, employees may join training courses held by the enterprises or intensive training courses assigned by enterprises for economical purposes and in conformity with capacity of the local government.

3. The assistance plan shall be notified to enterprises eligible for occupational safety and hygiene training and social security agency of province (using form No. II - 04 of Appendix II).

4. If the number of trainees in an enterprise is not enough for a separate training course, the enterprise may request Department of Labor, War Invalids and Social Affairs to nominate trainees to attend joint training courses in company with those who in the same group of trainees of other enterprises.

According to the number of trainees registered by enterprises, Department of Labor, War Invalids and Social Affairs shall choose qualified training providers to hold training courses with participation of those in the same group of trainees from multiple enterprises.

The size, contents, curriculum, and other training conditions shall be done consistent with Decree No. 44/2016/ND-CP dated May 15, 2016.

Article 15. Applications for financial assistance from the insurance fund

1. If an employer wishes to apply for financial assistance in career change training for employee having occupational accident or disease; for examination of occupational diseases, treatment of occupational diseases, or functional rehabilitation for employees having occupational accident or disease and occupational safety and hygiene training, it shall use the form No. III – 01, Appendix III issued herewith.

2. Within 5 working days from the receipt of adequate application, Department of Labor, War Invalids and Social Affairs shall decide the amount of financial assistance to enterprises or employees using form No. IV – 01 of Appendix IV. If the application is rejected, it shall provide explanation in writing.

3. If an enterprise intends to hold a separate training course, it shall prepare 2 sets of application, 1 set is kept at the enterprise for monitoring and 1 set is sent to Department of Labor, War Invalids and Social Affairs for consideration. The application includes:

a) An application form for financial assistance in occupational safety and hygiene training using form No. III – 01, Appendix III issued herewith;

b) A grand schedule of training costs enclosed with copies of valid documentary evidence in a case where the enterprise is qualified for self-training, or copies of training contract, training contract completion and financial invoices in a case where the enterprise engages a qualified training provider to provide training.

c) Department of Labor, War Invalids and Social Affairs shall verify the application and decide the financial assistance according to prices of occupational safety and hygiene training using form No. IV – 01 of Appendix IV and form IV – 02 of Appendix IV issued herewith.

4. According to the decision of Department of Labor, War Invalids and Social Affairs, the social security agency of province shall allocate supportive budget to enterprises within 5 working days from the receipt of the decision of Department of Labor, War Invalids and Social Affairs.

Chapter IV

MANAGEMENT OF OCCUPATIONAL ACCIDENT AND DISEASE INSURANCE

Article 16. Advocacy messages of occupational accident and disease insurance

1. Policies for occupational accidents and diseases.

2. Conditions and procedures for claims on occupational accident or disease insurance and financial assistance in occupational accident and disease prevention.

3. Regulations and laws on occupational safety and hygiene in respect of prevention of occupational accidents and diseases.

Article 17. Practices of occupational accident or disease insurance

1. Providing refresher courses in occupational accident and disease insurance.

2. Carrying out procedures for occupational accident and disease insurance affiliated to Labor, War Invalids and Social Affairs agency and social security agencies of levels; managing contribution payers, insured entities in occupational accident or disease insurance; and creating electronic documents.

3. Vietnam Social Security shall cooperate with agencies of the Ministry of Labor, War Invalids and Social Affairs in building centralized database of contribution and payment of occupational accident or disease benefit to manage contribution payers and insured entities.

Chapter V

IMPLEMENTATION

Article 18. Implementation

1. This Circular comes into force as of December 1, 2017.

2. Occupational accident and disease benefit prescribed in this Circular shall apply from July 1, 2016.

3. Entities prescribed in Point d, Clause 1 Article 2 may apply this Circular from January 1, 2018.

Article 19. Implementation

1. People’s Committees of provinces shall direct Departments of Labor, War Invalids and Social Affairs and relevant agencies to implement, expedite, inspect and take actions against violations and deal with difficulties, make preliminary and final report on implementation of this Circular.

2. Vietnam Social Security shall provide guidelines for contribution to the insurance fund; document the contribution progress in the social insurance books of employees who enter into multiple labor contracts with single or multiple employer(s) as the basis for settlement of claims on occupational accident or disease benefit as prescribed and Vietnam Social Security shall implement this Circular.

3. Social Security of the Ministry of National Defense and Social Security of People's Public Security shall settle claims on occupational accident and disease benefit made by employees in the Ministry of National Defense and the Ministry of Public Security as prescribed in this Circular.

Difficulties that arise during the implementation of this Circular should be reported to the Ministry of Labor, War Invalids and Social Affairs for consideration./.

Bài viết liên quan