SOME ISSUES CONCERNED BY ENTERPRISE IN COVID-19 PANDEMIC

1. Does employer have the right of termination of the labour contract with employee when the employee is infected with the virus Covid 19?

Recently, the Covid 19 pandemic has still complicatedly happened in Vietnam. There are numerous infected cases in factories which significantly affect not only the employees’ health and life, but also their risks of unemployment.

Pursuant to Artice 1 of Decision 447/QD-TTg issued by the Prime Minister, the infectious disease of Covid-19 is an acute respiratory infection caused by a newly discovered Coronavirus. Many enterprises wonder whether the employers have the right of termination of the labour contract with the employees if the employees are infected with the virus Covid 19 or not?

Pursuant to Artice 37.1 Labour Code 2019 stipulating one of cases that the employer does not have the right to terminate of the labour contract with the employee, the employee falls ill or suffers an accident, gets an occupational disease cured under treatment of a competent medical facility, excepts for the case that (i) the employee has fallen ill or has suffered an accident and has received 12 consecutive months of treatment for the employee working under an indefinite term labour contract or (ii) 06 consecutive months of treatment for employees working under a definite term labour contract from 12 months to 36 months, or (iii) more than half of the term labour contracts for employees working under definite-term labour contracts with a term of less than 12 months but their working capacity has not completely recovered (Article 36.1.b Labour Code 2019).

Therefore, the enterprise does not have the right of termination of the labour contract with the employee when the employees are infected and in treament.

2. How is employee’s salary calculated during the suspension company’s business activities?

Due to the Covid-19 pandemic, a lot of factories are blocked and their activities are interrupted (not by employer’s fault), the employee’s salary in the time of suspension at work is performed under Article 99.3 Labour Code 2019, that the salary will be paid by negotiation of the parties as follows:

(i) In case of working suspenion for 14 days or less, salary will be not less than the minimum wage;

(ii) In case of working suspension for more than 14 days, the salary is agreed, but it will be not less than the minimum wage within the first 14 days.

3. Obligations of the employer when unilaterally and illegally terminating the labour contract

(i) Must re-instate the employee in the job under the labour contract;

(ii) Must pay the salary, social insurance, health insurance, unemployment insurance for the days that the employee was not allowed to work;

(iii) Must pay an additional amount of money which is, at least, equal to the salary of 02 months under the labour contract;

(iv) If the position, job assigned in the labour contract no longer exist but the employee still wants to work, the two parties shall negotiate to modify and supplement the labour contract;

(v) Must pay an amount of money which is equivalent to the salary in unannounced days;

(vi) In addition to the above amounts, must pay severance allowance to terminate the labour contract if the employee does not want to continue working;

(vii) In case the employer does not want the employee’s return to work and, with an agreement of the employee, both parties shall agree an additional compensation which is, at least, equal to the salary of 02 months under the labour contract, beside the payments above, to terminate the labour contract.