Thông tư 28/2021/TT-BLĐTBXH hướng dẫn Luật An toàn, vệ sinh lao động về chế độ đối với người lao động bị tai nạn lao động, bệnh nghề nghiệp do Bộ trưởng Bộ Lao động - Thương binh và Xã hội ban hành

CIRCULAR

ELABORATING CERTAIN ARTICLES OF THE LAW ON OCCUPATIONAL SAFETY AND HYGIENE IN TERMS OF BENEFITS FOR workers suffering from OCCUPATIONAL ACCIDENTS OR OCCUPATIONAL DISEASES

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

Pursuant to Decree No. 88/2020/ND-CP dated July 28, 2020 of the Government elaborating certain Articles of the Law on Occupational Safety and Hygiene on compulsory insurance for occupational accidents and occupational diseases;

Pursuant to Decree No. 14/2017/ND-CP dated February 17, 2017 of the Government on function, tasks, powers and organizational structures of the Ministry of Labor, Invalids and Social Affairs;

At the request of the Director General of Department of Work Safety;

The Minister of Labor, War Invalids and Social Affairs promulgates a Circular elaborating certain Articles of the Law on Occupational Safety and Hygiene in terms of Benefits for workers suffering from Occupational Accidents or Occupational Diseases.

Chapter I

GENERAL PROVISIONS

Article 1. Scope

This Circular elaborates certain Articles of the Law on Occupational Safety and Hygiene in terms of benefits for workers suffering from occupational accidents or diseases to be provided by employers and social insurance for occupational accidents and occupational diseases.

Article 2. Regulated entities

1. Regulations on responsibilities of employers towards employees suffering from occupational accidents or occupational diseases prescribed in this Circular shall be applied to entities prescribed in clauses 1, 2, 4 and 5 Article 2 of the Law on Occupational Safety and Hygiene.

2. Regulations on social insurance benefits for employees suffering from occupational accidents or occupational diseases prescribed in this Circular shall be applied to entities prescribed in Article 2 of the Decree No. 88/2020/ND-CP.

Chapter II

BENEFITS FOR WORKERS SUFFERING FROM OCCUPATIONAL ACCIDENTS OR DISEASES TO BE PROVIDED BY EMPLOYERS

Article 3. Compensation for occupational accidents and diseases

1. Eligibility for compensation:

a) Workers suffering from occupational accidents causing at least 5% work capacity reduction or death partially caused by these workers; except for cases prescribed in clause 1 Article 4 hereof.

b) Workers suffering from occupational diseases causing at least 5% work capacity reduction or death upon working to employers or before retiring, leaving work, or transferring to work for other employers (excluding cases that workers suffering from occupational diseases resulting from working for other employers).

2. Compensation rules:

a) Compensation for occupational accidents shall be given immediately after each accident and not be totaled up;

b) Compensation for workers suffering from occupational diseases shall be given on the basis of:

- Percentage (%) of work capacity reduction (whole person impairment – WPI) for the first medical examination in the first accident.

- Increased percentage (%) of work capacity reduction to compensate differential part between the increase in percentage (%) of work capacity reduction compared to the previous result from the second accident onwards.

3. Rate of compensation:

Compensation for workers suffering from occupational accidents is prescribed in points a and b clause 1 of this Article as follows:

a) At least a 30 months’ salary shall be paid for workers suffering from a work capacity reduction of at least 81% or for relatives of workers who died in occupational accidents or diseases.

b) At least a 1,5 month’s salary shall be paid for workers suffering from a work capacity reduction of between 5% and 10%; if workers suffer from a work capacity reduction of from 11% to 80%, a 0,4 month’s salary shall be added according to the following formula or Appendix I issued together with this Circular for every 1% increase in work capacity reduction percentage:

Tbt = 1,5 + {(a - 10) x 0,4}

Whereas:

- Tbt: amount of compensation for workers suffering from at least 11% work capacity reduction (unit: months’ salary);

- 1,5: amount of compensation for workers suffering from a work capacity reduction of from 5% to 10%;

- a: percentage (%) of work capacity reduction of workers suffering occupational accidents or diseases;

- 0,4: Coefficient of compensation when work capacity reduction percentage increases by 1%.

Example 1:

- Mr. A has suffered from an occupational disease and taken the first medical assessment to confirm a 15% work capacity reduction. The first compensation for Mr. A shall be calculated as follow:

Tbt = 1,5 + {(15- 10) x 0,4}= 3,5 (months’ salary).

- Periodically, Mr. A had 35% work capacity reduction in the second medical assessment (the work capacity reduction had increased by 20% compared to the first medical assessment). The second compensation for Mr. A shall be calculated as follow:

Tbt = 20 x 0,4 = 8,0 (months’ salary).

Article 4. Benefits for occupational accidents

1. Workers suffering from occupational accidents causing at least 5% work capacity reduction or workers’ relatives dying in occupational accidents shall be entitled to benefits for occupational accidents caused by these workers (based on conclusions of the minute of investigation of occupational accidents).

2. Benefit rules: Benefits for occupational accidents shall be given immediately after each accident and not be totaled up.

3. Rate of benefits:

a) At least a 12 months’ salary shall be paid for workers suffering at least 81% work capacity reduction or for relatives of workers dying in occupational accidents or diseases;

b) At least a 0,6 month’s salary shall be paid for workers suffering from a work capacity reduction of between 5% and 10%; if workers suffer from a work capacity reduction of from 11% to 80%, the following formula or Appendix I issued together with this Circular shall be applied:

Ttc = Tbt x 0,4

Whereas:

- Ttc: Rate of benefits for workers suffering at least over 10% work capacity reduction (unit: months’ salary);

- Tbt: amount of compensation for workers suffering at least 10% work capacity reduction (unit: month’s salary);

Example 2:

- Mr. B has suffered from an occupational accident caused by himself due to violations against regulations on occupational safety. Mr. B took a medical assessment to confirm a 15% work capacity reduction after this accident. The first benefit for Mr. B: Ttc = Tbt x 0,4 = 3,5 x 0,4 = 1,4 (month’s salary).

- Then Mr. B has suffered from another accident when he was returning home after work (this case is investigated and confirmed to be entitled to benefits according to clause 1 of this Article). Mr. B has took a medical assessment to confirm a 20% work capacity reduction after this accident. The second benefit for Mr. B shall be calculated as follow:

Ttc = Tbt x 0,4 = 5,5 x 0,4 = 2,2 (months’ salary).

Article 5. Salary as the basis for calculating compensations and benefits for workers leaving work due to occupational accidents and diseases

1. Salary as the basis for calculating compensations and benefits prescribed in Articles 3 and 4 hereof and salary as the basis for calculating expenses payable for treatment and functional recovery prescribed in clause 3 Article 38 of the Law on Occupational Safety and Hygiene shall be the average amount of consecutive 6 months’ salary before the month on which occupational accidents or diseases occur. If the period of working or apprenticeship period is less than 6 months, the salary as the basis for calculating compensations and benefits is the average salary amount of months preceding the month on which occupational accidents occur or the month on which occupational diseases are confirmed.

2. Monthly salary prescribed in clause 1 of this Article shall be determined according to each entity below:

a) For officials, public employees and people working for the people military forces or the people public security forces, their monthly salaries shall include salaries based on their ranks, positions and salary allowances (if any) (position based allowances, seniority allowances and seniority allowances beyond the frame).

b) For workers working under employment contracts, monthly salary shall include salaries, allowances and other additional amount that two parties has confirmed in their employment contracts.

c) For apprentices, who are entitled to pay, working for employers, their monthly salaries shall be their apprenticeship salaries agreed by two parties; in case of no pay, salary as the basis applied to calculate compensations and benefits prescribed in clause 1 of this Article shall be the minimum salary publicized by the Government in places at which apprentices work.

d) For apprenticeship officials and public employees, their monthly salaries shall be their apprenticeship salaries according to decisions of competent authorities.

dd) For apprenticeship workers, their monthly salaries shall be their apprenticeship salaries agreed by two parties according to regulations of the Labor Code.

Article 6. Applications for compensations and benefits

1. For a worker who is entitled to compensation and benefit for an occupational accident, his/her employer shall be responsible for preparing an application including:

a) A minute of incident investigation, a meeting report on publicizing the minute of incident investigation of an Incident Investigation Team at the grassroots or province level, or at the central level.

b) A report on medical assessment (a written confirmation of the work capacity deduction percentage resulting in an occupational accident or WPI caused by the occupational accident) or a written confirmation report of worker’s death of a medical authority or a declaration of death of a missing worker of a court.

c) A decision on compensation or benefit for the occupational accident of the employer (according to the form specified in Appendix II issued together with this Circular).

d) A written confirmation of accident on way (if any), for cases prescribed in point c clause 5 Article 35 of the Law on Occupational Safety and Hygiene. Contents of the written confirmation may follow the form specified in Appendix IV issued together with this Circular.

2. For a worker who is entitled to compensation for an occupational accident, his/her employer shall be responsible for preparing an application including:

a) A dossier of occupational diseases of the worker as prescribed by current laws.

b) A written confirmation report of worker’s death of a medical authority or a medical assessment report (a written confirmation of the percentage of work capacity reduction resulting in the occupational disease) and a conclusion of a competent Medical Assessment Council.

c) A decision on compensation for the occupational disease from the employer (according to form specified in Appendix II issued together with this Circular).

3. The application shall be made into 03 copies, including:

a) A copy is given to the employer.

b) Another one is given to the worker suffering the occupational accident or disease (or a relative of a worker who died due to an occupational accident or disease).

c) The last one is sent to a Department of Labor-War Invalids and Social Affairs of the area at which the enterprise or authority or organization's headquarters is located within 10 days since the day on which the decision on compensation for the occupational accident or disease or decision on benefit for the occupational accident is issued.

Article 7. Time limits for compensations and benefits

1. Decision on compensations or benefits of employers to their workers suffering occupational accidents or diseases must be completed within 05 working days from the days of receiving medical assessment reports of Medical Assessment Councils on percentage of work capacity reduction for serious occupational accidents or from the days on which Incident Investigation Teams of provinces or central authorities organize meetings about publicizing minutes of grassroots-level incident investigation for fatal accidents.

2. Compensations and benefits must be provided once for workers or their relatives within 05 days from the days on which their employers make decisions on compensation and benefit.

Article 8. Provision of occupational accident and disease benefits in special cases

1. For a worker who suffering from an occupational accident or disease has not participated in the health insurance, his/her employer must pay all medical expenses from the time of the first aid or emergency to the time of treatment stability for the worker.

2. In case a worker is subject to the compulsory social insurance but his/her employer does not pay social insurance premiums for the worker, the employer must pay an amount of money equivalent to the benefits prescribed in clause 2 Article 42 of the Law on Occupational Safety and Hygiene to the worker suffering from occupational accident or disease instead of the social insurance authority as follows:

a) For a worker undergoing from 5% to 30% work capacity reduction, his/her employer must fully pay a lump-sum benefit equal to the amount prescribed in clause 2 Article 48 of the Law on Occupational Safety and Hygiene.

a) For a worker undergoing at least 31% work capacity reduction, his/her employer must monthly pay benefits equal to the amount prescribed in clause 2 Article 49 of the Law on Occupational Safety and Hygiene. The payment may be taken once or monthly according to an agreement between the employer and worker. In case they can not reach the agreement, the payment is taken according to requests of the worker.

3. In case a worker is subject to the compulsory social insurance and has suffered from an occupational accident or disease at the time that he/she does not register the payment to the occupational accident or disease insurance fund (hereinafter referred to as “the fund”) according to the time limit prescribed by laws, his/her employer has responsibilities to settle the worker’s rights as prescribed in clause 4 Article 39 of the Law on Occupational Safety and Hygiene and clause 3 of this Article.

4. In case a worker has an accident on the way to or from the workplace in the appropriate period and way, immediately in the first month in which he/she pay for insurance to the fund or in the first month of return to work in which the worker pay for insurance to the fund after the interrupted period of insurance payment resulting in the termination of employment contract, the employer must pay the insurance premiums of that month to the fund.

5. In case a worker had left or retired before the time in which his/her employer makes an application for providing social insurance benefits in terms of occupational accidents in the period of working, the employer shall transfer the application to a social insurance authority where the worker is staying or where retirement salary is provided; and in this case the social insurance register is not required.

6. In case a worker who is not entitled to occupational accident benefits as prescribed in point c clause 1 Article 40 of the Law on Occupational Safety and Hygiene and has suffered from an accident due to use of narcotic materials according to the List issued together with Decree No. 73/2018/ND-CP dated May 15, 2018 of the Government on lists of narcotic materials and precursors.

7. In case a worker who enters into employment contracts with multiple employers has an occupational accident or disease, the unit at which the worker is assigned tasks that leading to the occupational accident or disease must be responsible for making the application for enjoyment of benefits in terms of the occupational accident or disease for the worker.

8. In case a worker who enters into employment contracts with multiple employers has an occupational accident on the way from a workplace of a unit to another unit, in the period of appropriate period and way, and the accident is determined that is entitled to occupational accident benefits, the unit at which the worker goes to work is determined as the unit where the worker has the accident and the employer of that unit must be responsible for making the application for providing benefits in terms of the occupational accident for the worker.

Chapter III

SOME SOCIAL INSURANCE BENEFITS FOR WORKERS SUFFERING FROM OCCUPATIONAL ACCIDENTS OR OCCUPATIONAL DISEASES

Article 9. Benefits for occupational accidents or diseases for workers firstly assessed as work capacity reduction

1. A lump-sum benefit for an occupational accident or disease prescribed in clause 2 Article 48 of the Law on Occupational Safety and Hygiene is calculated as follows:

Whereas:

- L_min: the statutory pay rate of the month in which the worker enjoys the benefit.

- m: work capacity reduction percentage of the worker suffering the occupational accident or disease (m is an absolute value from 5 to 30).

- L: amount of salary used to pay to the fund according to clause 7 Article 11 of Decree No. 88/2020/ND-CP.

- t: total number of years that the payment to the fund is taken according to clause 6 Article 11 of Decree No. 88/2020/ND-CP.

Example 1: Mr. A is an official who has had an accident on June 16, 2020. After stabilization treatment for disabilities, he discharged hospital on July 05, 2020.

Mr. A was assessed at 20% work capacity reduction resulting in the occupational accident. Mr. A has paid for the occupational accident and disease fund for 10 years; amount of his salary used to pay to the fund of May 2020 according to the salary benefits prescribed by the State is 3,66 of his salary. In case the statutory pay rate in July was 1.600.000 VND, the lump-sum occupational accident benefit for Mr. A is calculated as follows:

- The amount of benefit calculated according to the work capacity reduction percentage is:

5 x 1.600.000 + (20 - 5) x 0,5 x 1.600.000 = 20.000.000 VND

- The amount of benefit calculated according to the number of years that he has paid insurance premiums to the occupational accident or disease fund is:

0,5 x 3,66 x 1.600.000 + (10 - 1) x 0,3 x 3,66 x 1.600.000 = 18.739.200 VND

- The amount of lump-sum benefit of Mr.A is:

20.000.000 + 18.739.200 = 38.739.200 VND

Example 2: Mr. B had an accident on May 12, 2020. After stabilization treatment for disabilities, he discharged hospital on August 10, 2020. Mr. B was assessed at 20% work capacity reduction.

Mr. B who participated in the social insurance from January 2019 is subject to the salary benefits prescribed by the State and he has paid to the fund for one year and 4 months; the amount of his salary used to pay to the fund in April 2020 is 2,34 of his salary; In case the statutory pay rate is 1.600.000 VND in August 2020, the lump-sum occupational accident benefit for Mr. B is calculated as follows:

- The amount of benefit calculated according to the work capacity reduction percentage is:

5 x 1.600.000 + (20 - 5) x 0,5 x 1.600.000 = 20.000.000 VND

- The amount of benefit calculated according to the number of years that he paid insurance premiums to the fund is: 0,5 x 3.486.600 = 1.743.300 VND

 (The amount of salary used to pay for social insurance in April 2020 of Mr. B is: 2,34 x 1.490.000 = 3.486.600 VND for the statutory pay rate of 1.490.000 VND).

- The amount of lump-sum benefit of Mr. B is:

20.000.000 + 1.743.300 = 21.743.300 VND

Example 3: Mr. D had an accident on May 12, 2016. After stabilization treatment for disabilities, Mr. D was assessed at 20% work capacity reduction. Mr. D has participated in the social insurance for 14 years (including 1-year payment for the social insurance under Decree No. 09/ND-CP dated January 23, 1998 of the Government, 02-year payment for the voluntary social insurance, 10-year payment for the compulsory social insurance for retirement and survivor benefits and 10-year payment to the fund); the amount of salary used to pay to the fund in July 2016 was 3.200.000 VND; the statutory pay rate in the month in which he enjoys the benefit is 1.210.000 VND per month.

Mr. D is entitled to lump-sum occupational accident benefit; the amount of benefit is calculated as follows:

- The amount of benefit calculated according to the work capacity reduction percentage is:

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

- The amount of benefit calculated according to the number of years that he has paid insurance premiums to the fund is:

0,5 x 3.200.000 + (10 - 1) x 0,3 x 3.200.000 = 10.240.000 VND

The amount of lump-sum benefit of Mr. D is 15.125.000 + 10.240.000 = 25.365.000 VND.

Example 4: Mr. B has paid insurance premiums to the fund in the enterprise X from September 16, 2020. After his disabilities are stably treated and he was assessed at 20% work capacity reduction, the amount of salary used to pay to the fund in September 2020 is 5.000.000 VND. The statutory pay rate in the month in which he enjoyed the benefit is 1.600.000 VND per month. Mr. B is entitled to lump-sum occupational accident benefit; the amount of benefit is calculated as follows:

- The amount of benefit calculated according to the work capacity reduction percentage is:

5 x 1.600.000 + (20-5) x 0,5 x 1.600.000 = 20.000.000 VND

- The amount of benefit calculated according to the number of years that he paid to the fund is: 0,5 x 5.000.000 = 2.500.000 VND

- The amount of lump-sum benefit of Mr.B is:

20.000.000 + 2.500.000 = 22.500.000 VND

2. The amount of monthly occupational accident or disease benefit prescribed in clause 2 Article 49 of the Law on Occupational Safety and Hygiene is calculated as follows:

= {0,3 x L_min + (m - 31) x 0,02 x L_min} + {0,005 x L + (t - 1) x 0,003 x L}

Whereas:

L_min: the statutory pay rate of the month in which the worker enjoyed the benefit.

- m: the work capacity reduction percentage due to an occupational accident or disease (m is an absolute value from 31 to 100).

- L: the amount of salary used to pay to the fund according to clause 7 Article 11 of Decree No. 88/2020/ND- CP.

- t: the total number of years that the worker pay insurance premiums to the fund according to clause 6 Article 11 of  Decree No. 88/2020/ND-CP CP.

Example 5: Mr. E had a traffic accident on his way to a meeting in August 2020. After stabilization treatment for his disabilities, Mr. E was assessed at 40% work capacity reduction. Mr. E has paid insurance premiums to the fund for 12 year, and the amount of salary used to pay to the fund in July 2020 is 5.000.000 VND. The statutory pay rate in the month in which he enjoyed the benefit is 1.600.000 VND per month. Mr. E is entitled to monthly occupational accident benefits; the amount of benefit is calculated as follows:

- The amount of benefit calculated according to the work capacity reduction percentage is:

0,3 x 1.600.000 + (40- 31) x 0,02 x 1.600.000 = 768.000 VND/month

- The amount of benefit calculated according to the number of years that he has paid insurance premiums to the fund is:

0,005 x 5.000.000 + (12- 1) x 0,003 x 5.000.000 = 190.000 VND/month

- The amount of monthly benefit of Mr. E is:

768.000 VND/month + 190.000 VND/month = 958.000 VND/month.

Example 6: Mr. M has paid insurance premiums to the fund in the enterprise X from September 2020 and he has an occupational accident on September 05, 2020. After his disabilities are stably treated and he was assessed at 40% work capacity reduction, the amount of salary used to pay to the fund in September 2020 is 5.000.000 VND. The amount of statutory pay rate in the month in which he enjoys the benefit is 1.600.000 VND per month. Mr. M is entitled to monthly occupational accident benefits; the amount of benefit is calculated as follows:

- The amount of benefit calculated according to the work capacity reduction percentage is:

0,3 x 1.600.000 + (40- 31) x 0,02 x 1.600.000 = 768.000 VND/month

- The amount of benefit calculated according to the number of years that he paid to the fund is: 0,005 x 5.000.000 = 25.000 VND/month

- The amount of monthly benefit of Mr. E is:

768.000 VND/month + 25.000 VND/month = 793.000 VND/month.

Example 7: Mr. Q has paid insurance premiums to the fund in the enterprise X from January 2015 to December 2017 with the salary of 17.000.000 VND per month. He has paid insurance premiums to the fund in the enterprise Z from January 2017 to December 2018 with the salary of 5.000.000 VND per month.

On January 09, 2017, Mr. Q had an occupational accident. Thus, on January 2017, the enterprise Z must still pay insurance premiums to the fund for Mr. Q; the time limit and salary applied to calculate occupational accident benefit according to the number of years that the enterprise Z had paid insurance premiums to the fund for Mr. Q are prescribed as follows:

- The time limit for enjoying the occupational accident benefit of Mr. Q is only calculated from January 2015 to December 2016.

- The salary as the basis for calculating the amount of enjoyed benefit according to the duration of payment to the fund of Mr. Q is:

+ The total salary of December 2016 in the enterprise X and of January 2017 in the enterprise Z if Mr. Q has the occupational accident in the enterprise Z;

+ The salary of December 2016 in the enterprise X if Mr. Q has the occupational accident in the enterprise X.

Example 8: Mr. A works under employment contracts and pay insurance premiums to the fund in the enterprise X and in the enterprise Y. On August 2020, Mr. A has an accident on the way to a conference as assigned by the employer of the enterprise X. After stabilization treatment for his disabilities, Mr. A was assessed at 40% work capacity reduction. Mr. A has paid insurance premiums to the fund for 12 years, and the total amount of salary used to pay to the fund in the enterprise X and Y is 13.400.000 VND. The statutory pay rate in the month in which he starts enjoying the occupational accident benefit is 1.600.000 VND per month. Mr. A is entitled to monthly occupational accident benefits; the amount of benefit is calculated as follows:

- The amount of benefit calculated according to the work capacity reduction percentage is: = 0,3 x 1.600.000 + (40 - 31) x 0,02 x 1.600.000 = 768.000 VND/month.

- The amount of benefit calculated according to the number of years that he has paid the insurance premiums to the fund is: = 0,005 x 13.400.000 + (12 - 1) x 0,003 x 13.400.000 = 509.200 VND/month

- The amount of monthly benefit is 768.000 + 509.200 = 1.277.200 VND/month. The enterprise X is responsible for preparing an application and submiting it to a social insurance authority where the enterprise X is paying social insurance premiums for providing the occupational accident benefits for Mr. A.

Example 8: Mr. A works under employment contracts and starts paying insurance premiums to the fund in the enterprise X and in the enterprise Y from August 2020. On August 20, 2020, Mr. A has an accident on the way to a conference as assigned by the employer of the enterprise X. After stabilization treatment for his disabilities, Mr. A was assessed at 40% work capacity reduction.

Mr. A has paid insurance premiums to the fund for under 01 year, and the total amount of salary used to pay to the fund in the enterprise X and Y is 13.400.000 VND. If statutory pay rate in the month in which he enjoys the benefit is 1.600.000 VND per month, Mr. A is entitled to monthly occupational accident benefits; the amount of benefit is calculated as follows:

- The amount of benefit calculated according to the work capacity reduction percentage is: = 0,3 x 1.600.000 + (40 - 31) x 0,02 x 1.600.000 = 768.000 VND per month.

- The amount of benefit calculated according to the number of years that he paid to the fund is: 0,005 x 13.400.000 = 67.000 VND/month

- The amount of monthly benefit is 768.000 VND/month + 67.000 VND/month = 835.000 VND/month.

The enterprise X is responsible for preparing an application and submitting it to a social insurance authority where the enterprise X is paying social insurance premiums for providing the occupational accident benefits for Mr. A.

3. People who are enjoying monthly occupational accident or disease benefits and are going abroad for settlement may enjoy lump-sum benefits that are equal to 3-month benefits that these people are enjoying if they have requests for the enjoyment.

Example 10: Ms. A is enjoying monthly occupational accident benefits and the rate of monthly benefit from December 2019 is 2.000.000 VND. On January 2020, Ms. A went abroad for settlement and she enjoyed a lump-sum benefit that is 3 x 2.000.000 VND = 6.000.000 VND

4. Workers infected with HIV/AIDS due to occupational accidents while performing their tasks shall be entitled to monthly occupational disease benefits equal to the enjoyment of those who suffer from occupational diseases due to at least 61% work capacity reduction without medical assessments.

In case there are medical assessments, if the work capacity reduction percentage is higher than 61%, the benefit enjoyment rate shall be determined according to the work capacity reduction percentage specified in conclusions of the Medical Assessment Council and documents about occupational disease benefit enjoyment in this case must consist of medical assessment minutes.

Article 10. Hanlding of occupational accident or disease benefits for workers re-assessed their work capacity reduction after their recurrent disabilities and diseases.

1. For workers who are enjoying occupational accident or disease benefits as prescribed by law on social insurance before January 01, 2007:

a) For workers who have enjoyed lump-sum occupational accident or disease benefits as prescribed by law on social insurance before January 01, 2007:

- In case after re-assessment is made, if the work capacity reduction is less than 31%, they shall be entitled to lump-sum benefits as follows:

- In case after re-assessment is made, if the work capacity reduction percentage is 31% and above, the workers are entitled to monthly occupational accident or disease benefits. The amounts of benefits are prescribed in point b of this clause.

Example 11: Mr. B has an occupational accident in October 2006; the work capacity reduction percentage is 21% and he received a lump-sum benefit of 5.400.000 VND. In March 2017, Mr. B was re-assessed due to the recurrence of his disabilities and the new work capacity reduction percentage is 45%. Mr. B is under group 2 of the work capacity reduction percentage and he is entitled to monthly benefits of a 0,6 statutory pay rate.

It is supposed that the statutory pay rate of the month in which the medical assessment council’s conclusion of the re-assessment is drawn is 1.210.000 VND per month. The amount of monthly benefit of Mr. B is 0,6 x 1.210.000 = 720.000 VND/month.

b) For a worker who has enjoyed monthly occupational accident or disease benefits as prescribed by law on social insurance before January 01, 2007, the amount of monthly benefits is calculated based on the result of re-assessment of the work capacity reduction percentage as follows:

2. For a worker who has enjoyed a lump-sum occupational accident or disease benefit from January 01, 2007:

a) After the re-assessment, if there is an increase in the work capacity reduction percentage compared to the previous assessment and less than 31%, the worker shall be entitled to a lump-sum benefit. The lump-sum benefit is calculated by the difference between the amount of benefit calculated according to the new work capacity reduction percentage and the previous work capacity reduction percentage. To be specific:

Whereas:

- L_min: the statutory pay rate of the month in which the worker enjoys the benefit.

- m₁: the work capacity reduction percentage due to the occupational accident or disease after carrying out re-assessment (m₁ is an absolute value from 5 to 30).

- m: the work capacity reduction percentage due to an occupational accident or disease (m is an absolute value from 5 to 30).

Example 12: Mr. C had an occupational accident in August 2013 with a 20% of work capacity reduction. In October 2016, Mr. C was re-assessed due to the recurrence of his disabilities and the new work capacity reduction percentage is 30%. The statutory pay rate of the month in which the medical assessment council’s conclusion of the re-assessment is drawn is 1.210.000 VND per month. Mr. C is entitled to the lump-sum benefit as follows:

{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.

b) After re-assessment, if there is an at least 31% of work capacity reduction, he is entitled to the monthly benefit calculated according to the new work capacity reduction percentage. To be specific:

= {0,3 x L_min + (m₁ - 31) x 0,02 x L_min} + {0,005 x L + (t - 1) x 0,003 x L}

Whereas:

- L_min: the statutory pay rate of the month in which he enjoys the benefit.

- m₁: the work capacity reduction percentage due to the occupational accident or disease after carrying out re-assessment (m₁ is an absolute value from 31 to 100).

- L: the amount of salary used to pay to the fund according to clause 7 Article 11 of  Decree No. 88/2020/ND- CP.

- t: the total number of years that he has paid insurance premiums to the fund according to clause 6 Article 11 of  Decree No. 88/2020/ND-CP CP.

Example 13: Mr. P had an occupational accident in August 2016 with a 20% of work capacity reduction. Up to the month before the month of the occupational accident, Mr. P has paid insurance premiums to the fund for 12 years; his monthly salary used to pay for the insurance of the month preceding the month of the occupational accident was 3.500.000 VND In November 2020, Mr. P was re-assessed due to the recurrence of his disabilities and the new decreased rate of work capability was 32%. It is supposed that the statutory pay rate of the month in which the medical assessment council’s conclusion of the re-assessment is drawn is 1.500.000 VND per month. Mr. P is entitled to the monthly benefits calculated as follows:

The amount of monthly benefit of Mr. P is:

{0,3 x L_min + (32-31) x 0,02 x L_min} + {0,005 x L + (12-1) x 0,003 x L}

= 0,32 x L_min + 0.038 x L = 0,32 x 1.500.000+ 0,038 x 3.500.000= 480.000 + 133.000 = 613.000 VND

3. For a worker who has enjoyed a monthly occupational accident or disease benefit from January 01, 2007, if there is a change in the work capacity reduction percentage after re-assessment, the new monthly benefit shall be calculated according to regulations in clause 2 Article 9 hereof in which the amount of benefit calculated according to the work capacity reduction percentage is calculated on the new work capacity reduction percentage. The amount of benefit calculated according to the number of years that the worker has paid insurance premiums to the fund is the current benefit.

= {0,3 x L_min + (m1 - 31) x 0,02 x L_min} + {0,005 x L + (t - 1) x 0,003 x L}

Whereas:

- L_min: the statutory pay rate of the month in which he enjoys the benefit.

- m₁: the work capacity reduction percentage due to the occupational accident or disease after carrying out re-assessment (m₁ is an absolute value from 31 to 100).

- L: the amount of salary used to pay to the fund according to clause 7 Article 11 of Decree No. 88/2020/ND- CP.

- t: the total number of years that he has paid insurance premiums to the fund according to clause 6 Article 11 of  Decree No. 88/2020/ND-CP CP.

Example 14: Mr. D had an occupational accident in September 2016 with a 40% of work capacity reduction and was entitled to monthly occupational accident benefits. In November 2020, Mr. D was re-assessed due to the recurrence of his disabilities and the new work capacity reduction percentage is 45%. It is supposed that his statutory pay rate of the month in which the medical assessment council’s conclusion is drawn is 1.600.000 VND per month and the amount of benefit calculated according to the number of years that he has participated in the fund of the time at which the medical assessment council’s conclusion is drawn is 162.000 VND per month.

4. In case a worker had an occupational accident or disease and the worker’s work capacity reduction percentage is ineligible for the enjoyment of occupational accident or disease benefit; however, due to his recurring disabilities or diseases after carrying out an assessment of the work capacity reduction percentage, it is eligible for occupational accident or disease benefits, the worker is entitled to the amount of benefit prescribed in Clauses 1 and 2 Article 9 of this Circular.

5. The amount of benefit for a worker who is re-assessed on the work capacity reduction percentage prescribed in clause 2 and clause 3 of this Article shall be calculated according to the statutory pay rate of the month in which the medical assessment council’s conclusion is drawn.

Article 11. Provision of occupational accident or disease benefits for workers enjoying lump-sum or monthly benefits and having new occupational accidents or diseases or infected with HIV/AIDS due to occupational accidents or risks fully assessed

1. In case a worker who has enjoyed a lump-sum or monthly occupational accident or disease benefit has a new occupational accident or disease from January 01, 2007, the worker is entitled to another occupational accident or disease depending on the work capacity reduction percentage resulting in the occupational accident or disease after full assessment. To be specific:

a) The amount of benefit is calculated according to the new work capacity reduction percentage calculated according to the worker’s statutory pay rate of the month in which a conclusion of the full assessment of a medical assessment council is made or of the month in which a confirmation of HIV/AIDS affection is granted.

b) The amount of benefit calculated according to the number of years that the worker pays insurance premiums to the fund after full assessment is carried out is calculated according to the number of years that the worker pays insurance premiums to the fund until the final year in which the worker has the occupational accident or disease and the amount of monthly salary that the worker pays insurance premiums to the fund according to clause 7 Article 11 of Article No. 88/2020/ND-CP of the last time that the worker has the occupational accident or has been confirmed to have the occupational disease.

= {0,3 x L_min + (m₂ - 31) x 0,02 x L_min} + {0,005 x L + (t - 1) x 0,003 x L}

Whereas:

- L_min: the statutory pay rate of the month in which the worker enjoys the benefit

- M₂: the work capacity reduction percentage of the worker due to the occupational accident or disease after full assessment (m₂ is an absolute value from 31 to 100)

- L: the amount of salary used to pay insurance premiums to the fund according to clause 7 Article 11 of Decree No. 88/2020/ND-CP.

- t: total number of years that the worker/employer pays insurance premiums to the fund according to clause 6 Article 11 of Decree No. 88/2020/ND-CP.

Example 15: Ms. K has paid insurance premiums to the fund in the enterprise X from January 01, 2015 to October 2017 with the salary of 15.000.000 VND per month. On July 09, 2016, Ms. K had an occupational accident and was assessed at 20% of work capacity reduction by a medical assessment council. Ms. K has enjoyed the lump-sum occupational accident benefit. Ms. K works under an employment contract and participates in an occupational accident or disease insurance in the enterprise Z with the salary of 4.000.000 VND per month from January 01, 2017 to December 31, 2017. On March 21, 2017, Ms. K continued to have another occupational accident and was assessed at 27% of work capacity reduction by a medical assessment council.

- The amount of benefit calculated according to the work capacity reduction percentage when she was assessed fully is:

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

- The amount of benefit calculated according to the period that she pays insurance premiums for the occupational accident and disease fund is:

+ The period that the worker has enjoyed the occupational accident benefits is 28 months from January 2015 to February 2017 and from January 2017 to February 2017. Because the period of participation is similar from January 2017 to February 2017, the period of entitlement to occupational accident benefits is 26 months equal to 2 years and 2 months.

+ The amount of salary applied to calculate the amount of benefits is:

15.000.000 VND + 4.000.000 VND = 19.000.000 VND.

+ The amount of benefit calculated according to the number of years that the worker has paid insurance premiums to the fund is:

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

- The amount of benefit for the new occupational accident is:

19.360.000 VND + 15.200.000 VND = 34.560.000 VND.

Example 16: Mr. G had an occupational accident in August 2016 with a 40% of work capacity reduction. In October 2016, Mr. G had another occupational accident and underwent treatment in a hospital. After stabilization treatment, Mr. H discharged from the hospital in November 2016 and he was assessed fully at 45% of work capacity reduction in December 2016 by a medical assessment council. Until September 2016, Mr. G has paid insurance premiums to the fund for 13 years and the amount of salary used to pay to the fund in September is 3.680.000 VND. It is supposed that the statutory pay rate of the month in which the medical assessment council’s conclusion of the full assessment is drawn is 1.210.000 VND per month. The amount of monthly benefits of Mr. G is calculated as follows:

- The amount of benefit calculated according to the work capacity reduction percentage after the full assessment is carried out is:

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

- The amount of benefit calculated according to the number of years that the worker has paid insurance premiums to the fund is:

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

- The amount of monthly benefit of Mr. G is:

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

Example 17: Mr. A has paid insurance premiums to the fund in the enterprise X from January 01, 2013 to October 2015 with the salary of 20.000.000 VND per month. On March 01, 2014, he has an occupational accident, was assessed at 45% decrease in work capability, and is entitled to a monthly occupational accident benefits. Example 17: Mr. A has paid insurance premiums to the fund in the enterprise Y from January 2016 to December 2016 with the salary of 24.200.000 VND per month. Mr. A also works under an employment contract and participates in an occupational accident or disease insurance with the enterprise Z from July 01, 2016 to December 2016 with the salary of 3.000.000 VND per month.

On December 01, 2016, Mr. A had an occupational accident and was assessed at 58% work capacity deduction. It is supposed that the statutory pay rate of the month in which the medical assessment council’s conclusion of the re-assessment is drawn is 1.210.000 VND per month. The amount of monthly benefit of Mr. A is calculated as follows:

- The amount of benefit calculated according to the work capacity reduction percentage after the full assessment is carried out is:

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

- The amount of benefit calculated according to the number of years that he has paid insurance premiums to the fund is:

+ The amount of salary applied to calculate the amount of benefits is:

24.200.000 + 3.000.000 = 27.200.000 VND more than 20 times of his statutory pay rate so it is only calculated by 20 times of his statutory pay rate equal to 24.200.000 VND.

+ The period that he has enjoyed the occupational accident benefits is 45 months equal to 3 years and 09 months including 34 months (from January 2013 to October 2015) and 11 months (from January 2016 to November 2016)

The amount of benefit calculated according to the number of years that he has paid insurance premiums to the fund is:

0,005 x 24.200.000 + (3 - 1) x 0,003 x 24.200.000 = 266.200 VND

- The amount of benefit for the new occupational accident is:

1.016.400 + 266.200 = 1.282.600 VND per month

2. In case a worker had an occupational accident or disease when he/she is participating in an occupational accident and disease insurance under many employment contracts and then he continues to have another occupational accident or disease when he is participating in the occupational accident or disease insurance under fewer employment contracts than those of the previous accident or disease and the amount of benefit calculated according to the number of years that the worker pays insurance premiums to the fund in accordance with clause 1 of this Article is lower than the amount of benefit that he is enjoying, the current benefits that he is enjoying shall be remained.

Example 18: in case of Mr. A mentioned in example 17, it is supposed that Mr. A had a contract with the enterprise Z from July 01, 2016 to December 2018 with the salary of 3.000.000 VND per month.

On March 01, 2018, Mr. A continued to have another occupational accident and was assessed at 70% work capacity deduction by the medical assessment council. It is supposed that the statutory pay rate of the month in which the medical assessment council’s conclusion of the re-assessment is drawn is 1.210.000 VND per month. The amount of monthly benefit of Mr. A is calculated as follows:

- The amount of current benefits of Mr. A is 1.282.600 VND per month

- The amount of benefit calculated according to the work capacity reduction percentage after the full assessment is carried out is:

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

- + The period that he has enjoyed the occupational accident benefits is 60 months equal to 5 years including 34 months (from January 2013 to October 2015) and 26 months (from January 2016 to February 2018)

+ The amount of salary applied to calculate the amount of benefits is: 3.000.000 VND.

+ The period that he has enjoyed the new occupational accident benefits is 5 years.

The amount of benefit calculated according to the number of years that he has paid insurance premiums to the fund is:

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

In conclusion, the amount of new benefit calculated according to the number of years that he has paid insurance premiums to the fund is lower than the amount of current benefit so the new benefit is equal to the current benefit of 266.200 VND

- The amount of new occupational accident benefit is: 1.306.800 + 266.200 = 1.573.000 VND.

3. Time for enjoying the benefit is calculated from the month in which the worker has been treated completely and discharged from hospital after the latest occupational accident or disease or from the month on which the medical assessment council’s conclusion is drawn in case inpatient treatment is not required or in case the time for ending stable treatment and discharging from the hospital.

Article 12. Regulations on allowances for the purchase of daily living aids and orthopedic devices and terms for the provision

1. A worker who has an occupational accident or disease resulting in damages to his/her body functions, depending on his/her disabilities or diseases shall be provided with an amount of money for purchase of living aids and orthopedic devices as prescribed at health treatment facilities, orthopedic and rehabilitation facilities of the Labor, War Invalids and Social Affairs sector or of provincial, central or higher-level hospitals (hereinafter referred to as “orthopedic and rehabilitation facilities”). .

2. Types of daily living aids, orthopedic devices and time limit

a) Prosthetic hand;

b) Hand plastic trough;

c) Prosthetic legs;

d) Leg plastic trough;

dd) A pair of shoes or a pair of orthopedic sandals;

e) Thigh splints, shin splints;

g) Orthopedic vests;

h) Wheelchairs, pendulums or alternative vehicles with the same allowance for purchasing wheelchairs or pendulums;

i) Crutches;

k) Hearing aids;

l) Prosthetic eye fittings;

m) Making of dentures according to the number of missing teeth; insertion in dentures due to jaw failure;

n) Purchase of household supplies in case of partial paralysis or complete paralysis or mental agitation.

In cases there are both the mental agitation and partial paralysis or complete paralysis, lump-sum allowances shall be granted to buy household supplies;

o) In case the worker receives an allowance for wheelchair or pendulum and prosthetic legs, their shelf life (terms for the provision) of each vehicle is 06 years.

3. The amount of allowances for purchase of daily living aids and orthopedic devices (including allowances for purchase of peripheral equipment and maintenance tools for these devices), and terms for the provision are prescribed in Appendix V issued together with this Circular.

4. The provision of allowances for purchase of daily living aids and orthopedic devices (including allowances for purchase of peripheral equipment and maintenance tools for these devices) for the whole shelf life (terms for the provision) is performed once.

Article 13. Procedures for implementing the provision of allowances for purchase of daily living aids and orthopedic devices

1. Workers who are eligible for allowances for purchase of daily living aids and orythopedic devices shall submit indications of competent orthopedic and rehabilitation facilities on the use of daily living aids and orthopedic devices.

2. Social insurance authorities

a) Within 10 working days from the date of receiving valid documents prescribed in clause 1 of this Article, shall have responsibilities for inspecting, comparing documents and making decisions on the provision of allowances for purchase of daily living aids and orthopedic devices under terms of provision for workers suffering from occupational accidents or diseases.

b) In case submitted documents are invalid, within 03 working days, must have written responses with clear reasons attached with all submitted documents to proposers.

Chapter IV

ORGANIZING IMPLEMENTATION

Article 14. Principles for providing compensations and benefits for occupational accidents and diseases

Workers who participate in the compulsory social insurance and receive compensations and benefits for occupational accidents or diseases as prescribed in Section 2 Chapter III of the Law on Occupational Safety and Hygiene and Chapter II of this Circular shall also be considered for entitlement to the social insurance benefits for occupational accidents and occupational diseases specified in Section 3 Chapter III of the Law on Occupational Safety and Hygiene and Chapter III of this Circular.

Article 15. Responsibilities of employers

1. Regularly improve conditions for working and caring for workers’ health.

2. Fully provide benefits for workers suffering occupational accidents or diseases as prescribed by laws.

3. Cooperate with relevant authorities in handling compensation for damages according to the Civil Code from parties that cause occupational accidents or accidents on ways to or from workplaces (if any).

4. Encourage employers to provide compensations and benefits for workers suffering occupational accidents or diseases at a higher amount than the amount specified in this Circular.

Article 16. Responsibilities of the Department of Labor, War Invalids and Social Affairs

1. Cooperate with relevant authorities in disseminating, guiding, organizing implementation and inspecting, supervising, handling violations, solving difficulties and presenting preliminary and final reviews of the implementation of this Circular in local areas.

2. Receive and store completely handled applications for compensations and benefits for occupational accidents or diseases from employers.

Article 17. Responsibilities of social insurance authorities

1. Vietnam Social Security shall provide guidance on the payment of insurance premiums for occupational accidents or occupational diseases; record and confirm the payment of insurance premiums to the compulsory occupational accident or occupational disease fund specified in social insurance books for workers who work under employment contracts with one or multiple employers as the basis for providing insurance benefits for occupational accidents or diseases as prescribed and implement this Circular.

2. Social insurance authorities affiliated to the Ministry of National Defense and the People's Public Security Forces shall be responsible for providing occupational accident or disease benefits for workers working for the Ministry of National Defense and the Ministry of Public Security as prescribed in this Circular.

Chapter V

IMPLEMENTATION CLAUSES

Article 18. Entry into force

This Circular comes into force from March 01, 2022.

Circular No. 04/2015/TT-BLDTBXH dated February 02, 2015 of the Ministry of Labor, War Invalids and Social Affairs on guidelines for compensations, benefits and health costs of employers for their workers suffering from occupational accidents or diseases and Circular No. 26/2017/TT-BLDTBXH dated September 20, 2017 of the Minister of Labor, War Invalids and Social Affairs prescribing and guiding the implementation of compulsory occupational accident or disease insurance benefits are invalid from the day on which this Circular takes effect.

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

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