You asked – The Ministry of Labour, Invalids and Social Affairs answered

LexNovum Lawyers

01/12/2021

According to Official Dispatch 2661/LDTBXH-PC on answering a number of policies to support employees and employers facing difficulties due to the COVID-19 pandemic, issued by the Ministry of Labor, War Invalids and Social Affairs (“LDTBXH”) on August 13, 2021 and to support the implementation of Resolution No. 68/NQ-CP and Decision No. 23/2021/QD-TTg of the Prime Minister on supporting employees and employers facing difficulties due to the COVID-19 pandemic. The Ministry of Labour, Invalids and Social Affairs has compiled Q&A content related to common questions and problems in the implementation process of those policies.

The content of the Q&A has been posted on the Ministry’s web portal and will be updated continuously and regularly.

Hereby some questions that have been answered by the Ministry of Labour, Invalids and Social Affairs collected by LexNovum Lawyers:

1. Group of questions about the policy of temporary contracts of labor contract, take unpaid leave

Question 1: Components of the application file for support for employees who suspend the performance of their labor contracts or take unpaid leave include “a written agreement on temporary suspension of the labor contract or unpaid leave”. However, due to the epidemic situation, employees and employers cannot meet to sign an agreement, so how can this issue be handled appropriately so that employees entitled to enjoy this support policies?

The Ministry of Labor, War Invalids and Social Affairs has issued Document No. 2558/LDTBXH-VP dated August 5, 2021 on coordination in implementing Resolution No. 68/NQ-CP of the Government. In this document, the Ministry has guided the composition of dossiers of request for support for employees who temporarily suspend the performance of labor contracts or take unpaid leave according to the provisions of Clause 1, Article 15 of Decision No. 23/2021/ Decision-TTg dated 7/7/2021 of the Prime Minister is implemented as follows:

– In case the employers and employees have a written agreement to suspend the performance of the labor contract or take unpaid leave, such written agreement shall be used;

– In case the epidemic or force majeure causes cannot be agreed in writing, the two sides of the employers and the employees can agree in other forms (via phone, text message, email, etc.). When there is an agreement on the suspension of the performance of the labor contract or unpaid leave between the two parties, the employers shall specify the method of this agreement in the note column of Form No. 05 issued together with the Decision No. 23/2021/QD-TTg and take responsibility for the accuracy of the content of the agreement.

Question 2: In case the employee has been settled according to the support level of VND 1,855,000/person (temporarily suspending the labor contract, taking unpaid leave from 15 consecutive days or more to less than 30 days), then continue to have to suspend the labor contract, take unpaid leave with a period of 30 consecutive days or more, will it be considered for settlement to enjoy the amount of difference support level (1,855,000 VND)?

Resolution No. 68/NQ-CP and Decision No. 23/2021/QD-TTg stipulate the principle: Each object is entitled to only once in a support policy; Employees who are supported once in cash are only entitled to one support regime.

In case the employee has been settled according to the support level of VND 1,855,000/person (temporarily suspending the labor contract, taking unpaid leave from 15 consecutive days or more to less than 30 days), then you continue to have to suspend your labor contract or take unpaid leave for a period of 30 consecutive days or more, you can submit additional documents to receive additional support for the amount of difference. This case is not contrary to the above principles and current regulations.

Question 3: The enterprise is located in a quarantined area that causes difficulty to supply raw materials, export goods, and has to suspend operations or the business has no conditions to arrange “3 on-site” / “1 road – 2 locations”, is it considered “Enterprises must suspend operations at the request of competent state agencies to prevent and control the COVID-19 epidemic” in order to enjoy support policies in Decision No. 23/2021/QD-TTg?

Case 1: For enterprises that do not meet the conditions of “3 on-site ” / “1 road – 2 locations” and have to stop production and business activities within the time of implementation of that regulation of the locality shall be considered as temporarily suspending operations at the request of competent state agencies to prevent and control the COVID-19 epidemic.

Case 2: The enterprise is located in a quarantined area that causes difficulty to supply raw materials and export goods may be considered as suspending operations at the request of competent state agencies to prevent and control the COVID-19 epidemic.

In practice, depending on the direction of anti-epidemic work of each locality, it is quite different according to its own characteristics, so it is necessary to have a flexible understanding and must be implemented in the simplest and most effective way with the goal of maximum support for businesses and employees in difficulty.

II. Questions about the stop working policy

Question 01: One of the conditions for obtain the stop-working support policy under Article 17 of Decision No. 23/2021 QD-TTg is that “employees who are subject to medical isolation or in locked-down areas at the request of competent state agencies”. What is the definition of the term “in the shining area”? Is it the place of work and/or residence of employees in the locked-down areas as required by the competent state agencies? Or just write down “distancing according to the Directive 16 of March 31, 2020 of the Prime Minister or in the Covid-19 protective medical isolation area” is eligible, isn’t it?

Regulations on “employees subject to medical isolation or in blocked off areas at the request of competent state agencies” in Clause 1, Article 17 of Decision No. 23/2021 QD-TTg are understood as the place of work and/or residence of employees in the areas that are locked down at the request of the competent state agencies, including the “distance according to the Directive 16 of March 31, 2020 of the Prime Minister” or is in the Covid-19 protective medical isolation area “.

Because of the variable and unpredictable situation, the understanding and applying of policies in each locality needs to be done creatively, flexibly and proactively, ensuring it is suitable for the work of directing epidemic prevention and control at each locality and supporting fast and on the true object of people, the local labor.

Question 02: With regard to the policy to support employees who have stopped working under Resolution 68/ND-CP and Decision No. 23/2021/QD-TTg, the payment to support employees who have stopped working can be transferred directly to the employees (not through the employer)? If possible, please amend and add the column of the employee’s bank account for receiving support (account name, account number, name of the Bank) to form No.06, specifically adding the column of information about the employee’s account number (for employees who do not have an account number, the enterprise will pay).

This is a matter of organizing the implementation of Decision 23/2021/QD-TTg. If the employer and the local competent state agency agree to transfer money directly to the employee, it is completely possible, not contrary to the law, specifically:

Form No.06 attached to Decision 23/2021/QD-TTg includes mandatory information that employers must follow. Other additional information (in addition to the information required under Form No.06) may be made on a voluntary basis by the employer.

In case the employer wishes to voluntarily transfer money directly to the employee according to the list, the employer may add the column of the employee’s account receiving the support (account name, account number, name of the Bank) in the form No. 06 attached to Decision 23/2021/QD-TTg and request the competent state agencies to assist in transferring money directly to employees. In this case, if the local agencies agree with the employer’s proposal, they will transfer money directly to the employee, this implementation is not contrary to the provisions of law.

=> The employees can supplement their information (the account number) to obtain the support for them and the State agencies will transfer directly to the Employees (in case the State agencies agreed).

Question 03: When performing medical isolation at home, if according to the isolation decision of a competent state agency, the employee does not have enough 14 days of actual medical isolation. However, after the isolation period according to the decision of the competent state agency, the employee voluntarily stays at home for 3-5 days (if including the number of day the employee voluntarily quits, it will be exactly 14 consecutive days or more). So, in this case, is the time of voluntary leave to be settled the benefits under Chapter V (policy of stopping work) of Decision 23/2021/QD-TTg?

According to the provisions of Article 17 of Decision No. 23/2021/QD-TTg, one of the conditions to receive support is: stop working and be subjected to medical isolation or in blocked areas as required from a competent state agency for 14 days or more. The period of time is understood as the time of medical isolation / in the blocked area (according to the decision of the competent state agency) from 14 days or more and the time of stopping work (according to Clause 3, Article 99 Labor Code) for 14 days or more.

Therefore, in case the medical isolation period according to the isolation decision of the competent state agency is not enough 14 days, it is not subject to the settlement of the regime under Chapter V (work stoppage policy) of the Decision 23/2021/QD-TTg.

III. Group of questions on labor accidents and occupational diseases

Question 01: Please make guidance on way of using the money from the reduction of contributions to the occupational accident and occupational disease insurance fund for employees to prevent and fight against COVID-19? Can Employers use this money to spend on things such as: Paying for Covid quick test for employees, buying blankets, folding chairs, supplies for “3-on-the-spot” production, epidemic prevention tools, masks, shields, disinfectants?

Resolution No. 68/NQ – CP and Decision No. 23/2021/QD – TTg do not rigidly regulate on the expenditures. Therefore, the employer actively decides on the content of legal expenditure on the basis of ensuring that “support the entire amount obtained from the reduction of the contribution to the Occupational accident and occupational disease insurance fund for employees to prevent and fight against the COVID-19 pandemic” in accordance with Resolution No. 68/NQ-CP and Decision No. 23/2021/QD – TTg.

The specific expenses specified in the above question (paying the fee for quick test of covid for employees, buying blankets, folding chairs, supplies for “3-on-the-spot” production, epidemic prevention tools, masks, shield, antiseptic) to support employees in the prevention of Covid 19 is not contrary to current regulations.

Question 02: What are the objectives and benefits of the employer and the employee when implementing the policy of reducing the employer’s contribution to the occupational accident and occupational disease insurance fund?

This policy was developed with the aim of supporting and contributing to reduce difficulties for employers and employees in the face of negative impacts of the Covid-19 pandemic, especially in the current context, according to the principle of sharing the risks, but still ensuring the balance of the insurance fund for occupational accidents and occupational diseases.

The target audience of the policy is all employers and employees who are applying the occupational accident and occupational disease insurance regime (except for cadres, civil servants, public employees, people in the army forces, people’s pages, employees in agencies of the Party, State, administrative agencies, public non-business units receiving salaries from the state budget).

According to current regulations, the employer is paying the employee to the Occupational Accident and Occupational Disease Insurance Fund at the rate of 0.3% – 0.5% of the salary fund as the basis for payment social insurance. Thus, when applying the policy, reducing the contribution rate to 0 dong, in 12 months (from July 1, 2021 to the end of June 30, 2022), it is estimated that the employer has a total of over VND 3.7 trillion dong to support employees in COVID-19 prevention and control.

Question 03: Is the procedure for implementing the policy of reducing occupational accident and occupational disease insurance premiums according to Resolution 68/NQ-CP and Decision No. 23/2021/QD-TTg simple? During the implementation of this policy (the payment is 0 dong), will employees lose their benefits if they have occupational accidents or occupational diseases? Or is it kept as current regulations?

The policy of reducing insurance premiums for occupational accidents and occupational diseases according to Resolution 68/NQ-CP and Decision No. 23/2021/QD-TTg does not generate any additional administrative procedures. Employers still register to participate in the Insurance Fund for Occupational Accidents and Occupational Diseases in accordance with current law, but the contribution rate is 0 dong.

The period of payment of occupational accident and occupational disease insurance under this policy (from July 1, 2021 to the end of June 30, 2022) is still included in the occupational accident and occupational disease insurance regime. All benefits for employees suffering from occupational accidents and occupational diseases during this time are still guaranteed according to the provisions of the law on social insurance and the law on occupational safety and hygiene.

IV. Questions groups about friendly labor

Question 01: Employees who work for the employer being fail to comply or improperly comply with the labor law (do not sign labor contracts, do not participate in social insurance, etc.) will not be satisfied the conditions to enjoy policies under Decision No. 23/2021/ QD-TTg, the locality plans to include this object in policy No. 12 of Resolution No. 68/ NQ-CP (some other specific object) to provide support or this support responsibility belongs to the employer, doesn’t it?

According to the law on labor and social insurance, it is against the law that the employer does not sign a labor contract or participate in social insurance for the subject of compulsory participation. In the context of the Covid-19 pandemic, in order to share difficulties, support employees, the localities can consider and support this group of employees based on the provisions of Clause 12, Section II of Resolution No. 68/NQ – CP and at the same time requires employers to comply with relevant regulations on social insurance, labor contracts, wages, unemployment insurance… to ensure rights and obligations for employees.

Question 02. Are localities regulated policies to support freelance employees once or many times? Both Resolution 68/NQ- CP and Decision 23/2021/QD-TTg stipulate the principle that each object is only supported once in a support policy. So is the locality regulated that freelance employees are supported many times (each time with the same level or different levels of supporting) corresponding to different epidemics?

In the general spirit, Resolution 68/NQ-CP and Decision No.23/2021/QD-TTg assign localities to prescribe support policies for freelance employees depending on conditions, characteristics and contexts epidemic situation of each locality (budget, number of freelancers, less serious, serious, very serious or particularly serious epidemics,…). Resolution 68/NQ-CP and Decision No.23/2021/QD-TTg stipulate the principle that each object can only be given once in a support policy.

However, due to the complicated and unpredictable development of the epidemic situation, the understanding and application of policies in each locality should be done creatively, flexibly and proactively, in order to ensure compliance with the direction of disease prevention and control in each locality and providing prompt and right support to people and employees in the area. Where a locality considers it necessary to provide multiple support for freelance employees, the locality shall apply the provisions of the Law on Organization of Local Government and the Law on State Budget to stipulate policies for freelance employees (subjects, conditions, benefits, number of times,…).

Executor: Nhi Phan – LexNovum Lawyers