Chương II Thông tư 28/2021/TT-BLĐTBXH: Một số chế độ đối với người bị tai nạn lao động, bệnh nghề nghiệp thuộc trách nhiệm của người sử dụng lao động

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.