Sending a positive message to employees at risk during crisis

Dr. Oliver Massmann, general director of Duane Morris Vietnam LLC

With a focus on remuneration payments to employees during this pandemic season, the following advice is provided based on current laws and, where relevant and available, government ad-hoc policy and guidance.

As ever, employers are of course free to implement policies that are more favourable than the statutory minimum. Also, this is an area subject to change, potentially very suddenly.

Once an employee is showing symptoms of illness or is feeling unwell and then stays at home, there are various options which should be considered on a case-by-case basis.

Sick leave in Vietnam

If an employee is sick and obtains a valid medical certificate evidencing the same, the employer can file this medical certificate with social insurance (SI) and that will pay sick leave entitlements to the employee. Such entitlement is equal to the lower of 75 per cent of the employee’s regular salary or 75 per cent of the SI cap.

The SI will pay up to 30 days a year for those who have contributed to the SI fund for less than 15 years; 40 days per year for those who have contributed to the SI fund for more than 15 and less than 30 years; and 60 days annually for those who have contributed to the SI fund for more than 30 years.

In short, assuming the employer has contributed in full as required to the SI scheme, then such employer is not required by law to pay salaries for employees on sick leave.

Some employers voluntarily offer extra fully-paid sick leave to employees and, if such an arrangement is in place at your company, employees would be entitled to use up any additional paid sick leave entitlement before filing statutory SI claims.

Strictly speaking, the SI regime will only provide salary cover for employees with certified sickness. Thus, an employee who is isolated to be assessed as to whether they are sick or not would not be covered by the SI regime as it stands now. In such circumstances, it would be recommended that the employer seeks to reach an agreement with the employee to pause work on a reduced salary.

Under all circumstances, an affected employee would be entitled to apply to take their accrued paid annual leave entitlement first.

Childcare salaries

Regarding people who have to work from home with children while schools are closed, this reason for being home is not considered as sick leave or leave to take care of a sick child under the age of seven, both of which are permitted reasons for absence from work covered under Vietnam’s SI regime.

In addition, as addressed above, unproven sickness would also fall under this category.

Strictly speaking, unless the employee is able to work from home due to his/her job description and the employer was to agree with that, absence from work for this reason is considered either absence without permission or leave pursuant and subject to the employer’s specific leave regime.

As such, the options for salary payments would be the below, in order of priority:

Option 1: The employee applies for paid annual leave until they use up their accrued annual leave entitlement.

Option 2: The employee formally pauses work as a direct result of the pandemic and following negotiation and agreement with their employer on reduction of contractual salary during such period (Article 98.3 of the Labour Code 2012).

Option 3: The employee and their employer discuss and reach an agreement on unpaid leave (Article 116.3 of the Labour Code 2012). Agreement on this in principle, and length of any unpaid leave, is essentially at the discretion of the parties to agree.

Workers would be advised to research their rights as companies strategise their next moves, Photo: Le Toan

Employment arrangements

Pursuant to Official Letter No.1064 issued by the Ministry of Labour, Invalids and Social Affairs on March 25, employers are recommended to follow the lawful options below to arrange their employment.

Option 1: Temporary transfer. If the employer faces difficulties regarding the material supply and market, causing redundancy, the employer may temporarily transfer the employee to other work rather than the contractual agreement, according to Article 31 of the Labour Code.

The salary should remain the same for the first 30 days of temporary transfer; after that, the salary for the new position can be 85 per cent of the contractual salary. We further note that if the transfer is longer than 60 days per year, the employee’s consent would be required.

Option 2: Work pause. By this approach, the employer can maintain employment relationships but negotiate reduced salaries with affected employees (such amount not to be lower than the applicable regional minimum wage) for a specific period, pursuant to Article 98.3 of the Labour Code 2012.

Option 3: Temporary delay of labour contract implementation. If the work pause period under Option 2 lasts too long, which may affect the employer’s capability on salary payment, the employer and employee may agree to temporarily delay the implementation of the labour contract, according to Article 32 of the Labour Code. As far as our understanding, this is one kind of unpaid leave scheme where the employment is still maintained but the employee does neither work nor get paid.

Option 4: Employment termination. If an enterprise must scale down its production, causing employment redundancy, the employer may conduct the labour arrangement according to Article 38 of the Labour Code (unilaterally termination by employer) or Article 44 (redundancy retrenchment due to economic reasons).

Negotiating reduced salary

At present, there is no real difference in practice between a temporary closure made at the decision of the employer as a result of a pandemic and one ordered by a competent authority.

In both cases, the initial starting point is that it would need to continue to pay contractually agreed amounts.

However, as noted below, the employer should consider discussing with employees about receiving a reduced salary, not to be lower than the applicable regional minimum wage (with no work duties to be performed). If the alternative is the (lawful) right to unilaterally terminate employment or redundancy retrenchment under Option 4 above, this may be an attractive option for affected employees.

In other words, employees may be motivated to agree on the reduction because, if they do not, the employer would have legal grounds to unilaterally terminate employment or implement the labour usage plan on redundancy as a result of the pandemic.

Ad-hoc directives

The bottom line is that, despite the current laws, there might be a strong possibility that further ad-hoc regulation or policy may be issued by the government that will affect the current status quo in law.

Right to disclose employee’s COVID-19 status to other colleagues

Strictly speaking, this information is deemed by law to be “confidential medical information” of the employee, meaning that an employer is NOT permitted to disclose the fact of an employee’s sickness to others in the absence of the relevant employee’s express consent.

An employer could disclose generally that an employee has tested positive for COVID-19 without identifying the specific individual affected.

On the other hand, taking into account the wider public health imperative and the positive obligation of all infected individuals to isolate and identify individual contacts for checks, plus the positive obligation on employers to disclose the positive case (noting that failure to disclose the positive case of disease is strictly prohibited under Article 8.3 of the Law on Prevention and Control of Infectious Diseases) it can reasonably be concluded that, even without express consent, employers must provide other employees and the authorities with identifying information of affected employees that they have knowledge of in order to meet wider obligations.

In other words, this is one area where it seems likely that wider public health concerns and obligations trump individual personal privacy regulations. Having said that, employers are advised to proceed in a way so as to limit, to the extent possible, the scope of privacy breaches.

Right to require employees to work from home

Theoretically speaking, any change to an employee’s workplace as recorded in their labour contract must comply with the terms of the relevant contract or be subject to express prior consent of the employee concerned.

Despite this, in the current situation, we are of the view that employers are able to require employees to work from home regardless of the foregoing, should the employer determine that such change of location is necessary to protect health and/or to comply with orders or requests of competent authorities.

In doing so, the employer would be entitled to expect the employee to continue to discharge regular duties and working hours. Reality does, however, dictate that this may be difficult in practice for the employer to control and/or the employee to achieve. The employee would have a reasonable expectation of being provided necessary means to discharge duties (such as a computer).

It remains arguable what rights employees may have to insist on working from home where the employer reasonably considers it unnecessary for public health purposes and in the absence of any positive requirement from authorities to order work-from-home arrangements where possible.

Right to screen employee and visitor temperatures

The Law on Prevention and Control of Infectious Diseases 2007 generally recognises enterprises’ rights to prepare and implement plans to prevent and control infectious diseases on a case-to-case basis.

In our view, this would provide a basis for employers to insist on temperature screening for employees and visitors entering the workplace. In fact, this is widely accepted practice by most, if not all, state authorities and state-owned enterprises in Vietnam and many private businesses as well.

It would, however, always be preferable to have an actual written policy that outlines the reason by reference to the Law on Prevention and Control of Infectious Diseases and procedures to implement including how to act in the case of temperatures considered to be high.

Right to report on employee’s abnormal symptoms

In principle, an employee is obliged to comply with their employer’s internal policies on labour safety and hygiene at the workplace. Specifically, one of these obligations is to report any potential risk where a dangerous and hazardous factor might appear at the workplace (Article 18 of the Law on Labour Safety and Hygiene 2015).

Concurrently, employers are entitled to be aware of all health-related risks at the workplace and have a responsibility to keep employees and relevant authorities updated on the same (Article 23.4 of the Law on Prevention and Control of Infectious Diseases 2007).

Therefore, it is allowable for employers to report to competent authorities and/or to update its internal management personnel in case an employee has abnormal symptoms, including without limitation to the employee’s temperature.