3 NO and 4 YES with respect to pregnant female employees that enterprises should know?

Date: 30 August 2021

Writer: Thu Tran

According to a report dated March 2021 issued by International Labor Organization (ILO), Vietnamese women are working in labor relationships at a higher rate than the average global. In 2019, 70.9% of the working-age Vietnamese women joining the labor force, while the global rate was only 47.2%. The pregnant employee is also a high proportion in this group. Therefore, Vietnamese law has had regulations on protecting pregnant female employees.

Through this article, BLawyers Vietnam would like to provide readers with the privileges of pregnant female employees under the law that enterprises should know.

1. 3 NO that the enterprises cannot do towards pregnant female employees

1.1. Unilateral terminating the labor contracts

Pursuant to the Labor Code 2019, the enterprise cannot unilaterally terminate labor contracts with employees who are pregnant females or on maternity leave or nursing children under 12 months of age.

If the enterprise still unilaterally terminates the labor contract in this case, it will be considerable as an illegal act. Accordingly, the enterprise must reinstate the employee and compensate for the employee as prescribed.

1.2. Settling labor discipline

Enterprises can also not settle labor discipline during the period of pregnancy of female employees, maternity leave, nursing children under 12 months of age. The disciplinary action must be settled within 6 months from the date of the violation. After the pregnancy, maternity leave, and nursing children under 12 months of age period, the enterprise is still entitled to discipline within the remaining prescription.

If the remaining timeline for settling labor discipline is under 60 days or expires, the enterprise shall do so within 60 days.

1.3. Requiring the employees for working at night, overtime, and long-distance business trips

Enterprises cannot require the female employee who reaches her 7th month of pregnancy or 6th month of pregnancy when working in the upland, remote, border, and island areas to work at night, overtime, and long-distance business trips.

2. 4 YES as the privileges of the pregnant female employees

2.1. Priority for entering the labor contract if being expiry

In case the female employee is pregnant while the labor contract is expiry, the enterprise must prioritize the conclusion of the new labor contract with the female employee. Unless both parties agree to terminate the labor contract without signing a new contract.

2.2. Unilaterally terminating or suspending the labor contract

The laws allow a pregnant female employee to unilaterally terminate her labor contract if she obtained a confirmation form by the competent health facility which states that if she continues to work, it may adversely affect her pregnancy. In this case, the female employees must notify the enterprise and enclose with the above confirmation form. However, enterprises should check the legality and completion of such form to properly settle the procedures for employees.

In addition to above the right to unilaterally terminate the labor contract, pregnant female employees also can suspend the labor contract with the suspension period under agreement with the enterprise, but it is no sooner than a temporary leave period written in the confirmation form by the competent health facility.

2.3. Taking maternity leaves and maternity regime under laws

Pregnant female employees can take maternity leaves no more than 2 months before giving birth and no more than 4 months after giving birth. In case of multiple births, the leave shall be extended by 01 month for each child, counting from the second child. During the maternity leave period, the female employees can have the maternity regime under laws.

2.4. Changing the current works at enterprises

Pregnant female employees will be transferred to a less laborious or safer work or reduce the working hours by 01 hour per day without reducing their salary, rights, or benefits if satisfying the conditions:

(i) Being working laborious, toxic or hazardous jobs, or highly laborious, toxic, hazardous jobs or any work that might negatively affect her maternity; and

(ii) Notifying the enterprise.

Should you have any questions about the above contents, please revert to BLawyers Vietnam at consult@blawyersvn.com. We are more than happy to hear from you!

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