Công văn 3432/LĐTBXH-BHXH 2016 thực hiện chế độ bảo hiểm xã hội

THE MINISTRY OF LABOR – WAR INVALIDS AND SOCIAL AFFAIRS 

Official Dispatch No. 3432/LDTBXH-BHXH dated September 08, 2016 of the Ministry of Labor, War Invalids and Social Affairs on regarding the disposition of social insurance benefits as per the 2014’s Law on social insurance

To:Vietnam Social Security.

In response to the Letter No. 1640/BHXH-CSXH dated May 09, 2016 and Letter No. 427/BHXH-CSXH dated February 04, 2016 by Vietnam Social Insurance on its seeking clarification of certain inquiries about the disposition of social insurance benefits according to the 2014’s Law on social insurance, the Ministry of Labor - Invalids and Social affairs provides the following answer:

1.Illness benefit:

An employed person contributing to the sickness and maternity fund under compulsory social insurance shall receive a sickness benefit commensurate with the most recent month’s salary from which social insurance contribution was calculated prior to his paid or unpaid absence for the duration of at least 14 work days due to his falling sick, having a non-occupational accident or giving care to his sick child of less than 7 years of age. If that person s sickness persists and prolongs his inevitable absence from work in subsequent months, the sickness benefit shall be based on the most recent month s salary from which social insurance contribution was calculated prior to his absence.

2.Maternity benefit:

a) A female worker pregnant with multiples then suffering stillbirth or loss of one or all neonates shall receive a one-time childbirth benefit according to Article 38 of the Law on social insurance. Such benefit varies according to the quantity of stillborns and neonates born alive and dead.

b) Pursuant to Section 3, Article 31 of the Law on social insurance, a pregnant female worker having contributed to social insurance for at least 12 months, if taking a maternity leave prescribed by a competent health care facility, is required to have contributed to social insurance for at least 03 of the 12 months prior to her giving birth. Law on social insurance and guiding documents do not define the minimum length of maternity leave that enables the maternity benefit stated above.

c) The one-time childbirth benefit, in case only the father contributes to social insurance according to Article 38 of the Law on social insurance, shall be granted to the mother despite her ineligibility for such benefit providing that the father meets the requirements specified in Section 2, Article 9 of the Circular No. 59/2015/TT-BLDTBXH dated December 29, 2015 by the Ministry of Labor - Invalids and Social affairs.

d) Section 6, Article 34 of the Law on social insurance defines that the father shall be granted paternity leave until the child turns 06 months old if solely the father contributes to social insurance for any length of time and the mother is unfit to attend to the child due to her childbirth complication(s) confirmed by a competent health care facility.

dd) A male worker contributing to the sickness and maternity fund under compulsory social insurance, when his wife gives birth, can take paternity leave on separate days totaling the duration specified in Section 2, Article 34 of the Law on social insurance.

A male worker shall take paternity leave within 30 days from the date that his wife gives birth. If he takes leave on separate days, his last period of leave must be initiated within 30 days upon his wife s childbirth.

e) The maximum duration of postpartum recovery specified in Section 2, Article 41 of the Law on social insurance is meant for a calendar year starting on the 01stof January and ending on the 31stof December.

The duration of recovery shall be based on the worker s actual non-working period inclusive of regulated holidays and weekly days off.

3.Retirement benefit:

a) The eligibility for pension, calculation of pension rate, early retirement reduction percentage, calculation of actual age and contributory period with incomplete months in surplus, and one-time retirement benefit for individuals specified in Section 2, Article 28 of the Government’s Decree No. 115/2015/ND-CP dated November 11, 2015 shall be governed by relevant laws taking effect before January 01, 2016.

If such individuals receive the pension from February 01, 2016 onwards, their retirement benefit shall be governed by the 2014’s Law on social insurance.

b) The retirement benefit for a female worker conducting specialized or non-specialized tasks of a commune, ward or district and having contributed to compulsory social insurance for full 15 to at most 20 years shall be governed by the following regulations:

-If such individual leaves employment and has social insurance contribution time reserved before January 01, 2016, she shall be granted a pension according to Section 3, Article 54 of the 2014’s Law on social insurance providing that she reaches the full age of 55 and applies for such pension after January 01, 2016.

-If such individual continues contributing to social insurance voluntarily, her retirement benefit shall be governed by Section 4, Article 4 of the Circular No. 01/2016/TT-BLDTBXH dated February 18, 2016 by the Ministry of Labor - Invalids and Social affairs.

-If such individual continues contributing to compulsory social insurance (though no longer identified as a specialized or non-specialized worker in a commune, ward or town), the retirement benefit shall be governed by Section 1 and Section 4 of Article 54 and by Article 55 of the 2014’s Law on social insurance.

c) If the calculation of the average amount of the salary on which social insurance is contributed, for determining the pension or one-time benefit, includes the time before October 01, 2014 at which social insurance was contributed as per the governmental salary scheme, the monthly salary on which social insurance is contributed in such period shall be converted according to the salary scheme in effect upon the granting of the retirement benefit or death benefit. For workers who were employed by enterprise(s) contributing to social insurance as per the governmental salary scheme and receive their social insurance benefit on or after January 01, 2016, the monthly salary on which social insurance was contributed before the 01stof October 2004, as mentioned above, shall be converted according to the Government s Decree No. 205/2004/ND-CP dated December 14, 2004.

For social workers who continue contributing to compulsory social insurance upon their repatriating after completing an overseas employment assignment, the monthly salary on which social insurance contribution is determined for the overseas employment period shall be twice as much as the statutory pay rate in force upon the granting of the social insurance benefit.

d) If a worker reaches the pension age but his compulsory social insurance contribution time is short of at most 06 months as per Section 6, Article 85 of the Law on social insurance or of at most 30 months as per Point e, Section 1, Article 3 of the Government’s Decree No. 26/2015/ND-CP dated March 09, 2015, such person can make an additional contribution to the retirement and death benefit fund at once to be eligible for pension. The salary of the month prior to termination of employment shall be deemed as the contributory salary of the insufficient months.

If such person undertakes a (extremely) hard or hazardous profession or is entitled to an working region-based benefit coefficient of at least 0.7 prior to the month that employment ends, the amount of insufficient months for which the additional contribution to social insurance is made shall not be included in the duration during which he undertook hard or hazardous works or worked in an area to which the region-based benefit coefficient of 0.7 or higher applies.

dd) Workers who reach the pension age and have made the one-time contribution to the retirement and death benefit fund before January 01, 2016 to fulfill compulsory social insurance contribution for an insufficient amount of at most 06 months shall be granted the pension from January 01, 2016 onwards.

e) If a person whose contribution to social insurance started before January 01, 2014 and has since continued or been reserved passes away upon the calculation of his one-time social insurance benefit or one-time death benefit, the incomplete months in surplus from the contribution period before January 01, 2014 shall be brought forward to the social insurance contribution period accounted from January 01, 2014 onwards.

g) The one-time benefit for a person on a pension immigrating to a foreign country as per Article 65 of the 2014’s Law on social insurance, if his social insurance contribution period has incomplete months in surplus, shall be calculated in such a method similar to that for the one-time social insurance benefit covering a contribution period with incomplete months in surplus.

4.Death benefit:

a) A child s age shall be determined as the basis of the parent’s death benefit in the following manner:

-If the child is under 18 years of age, his age shall include the full month preceding the month of birth in which the child turns 18.

-If the child is under 6 years of age, his age shall include the full month preceding the month of birth in which the child turns 6.

b) If the documents do not clarify the day and month of birth of the worker’s family member(s) upon the calculation of the death benefit, the 01stof January of the year of birth shall be used.

c) The income of the worker’s family member(s) shall be determined as per Section 3, Article 67 of the Law on social insurance for the month of the worker’s death so as to calculate the monthly death benefit.

The family member, after granted a monthly death benefit as per regulations, shall continue receiving such benefit on monthly basis even though such person’s income is later higher than the statutory pay rate.

d) A worker or his family member, if concluded eligible for social insurance benefit after undergoing a functional capacity evaluation, shall be reimbursed for the expense of such evaluation as per Section 4, Article 84 of the Law on social insurance.

5.Voluntary social insurance:

a) A contributor to voluntary social insurance reaching the regulated pension age shall be granted a pension from the month immediately succeeding the month that he applied for making a one-time contribution to voluntary social insurance for any insufficient time between January 01, 2016 and the date preceding the effective date of the Circular No. 01/2016/TT-BLDTBXH, though the social insurance authority collects such contribution on or after April 04, 2016 as per the Circular No. 01/2016/TT-BLDTBXH, providing that he has contributed to the retirement and death benefit fund before July 01, 2016 and that the social insurance authority s software or documents on applications display the time of such worker’s submission of his application.

b) A worker contributing to voluntary social insurance and having selected a contribution method specified in Section 2, Article 87 of the Law on social insurance shall be granted the right to make an one-time contribution for insufficient years to receive the pension immediately upon attaining his eligibility (i.e. full age of 60 for men and 55 for women, and maximum amount of 10 insufficient years) regardless of his fulfillment of such method.

6.Transition:

a) Region-based benefit

-The duration of a person’s employment in a B-class or C-class battlefield before April 30, 1975 and a in K-class battlefield before August 31, 1989 shall be regarded as the time of employment in an area to which the region-based benefit coefficient of 0.7 applies with regard to the requirements for retirement benefit.

-The duration of employment before January 01, 1995 in an area to which the region-based benefit coefficient of 0.7 or higher applies shall be determined, with regard to retirement benefit, according to the Joint Circular No. 11/2005/TTLT-BNV-BLDTBXH-BTC-UBDT dated January 05, 2005 by the Ministry of Home affairs, Ministry of Labor - Invalids and Social affairs, Ministry of Finance and the Committee for Ethnic minority affairs.

If a worker’s past working site is not defined or is specified with a region-based benefit coefficient of less than 0.7 by the Joint Circular No. 11/2005/TTLT-BNV-BLDTBXH-BTC-UBDT but is specified with such a rate of 0.7 or higher by previous legislative documents, such previous documents shall govern the requirements for retirement benefit.

-The one-time region-based benefit for a worker who worked in a B-class battlefield that is specified with a region-based benefit coefficient by the Joint Circular No. 11/2005/TTLT-BNV-BLDTBXH-BTC-UBDT shall be based on the higher region-based benefit coefficient.

-The one-time region-based benefit for a person granted with social insurance benefit before January 01, 2016 shall be governed by the Government’s Decree No. 122/2008/ND-CP dated December 04, 2008 and by the Circular No. 03/2009/TT-BLDTBXH dated January 22, 2009 by the Ministry of Labor - Invalids and Social affairs. The rate of the one-time region-based benefit for the duration of employment before January 01, 1995 as included in social insurance benefit and the period of social insurance contribution from January 1995 onwards shall be based on the administrative division of a worker s working site according to the Appendix to the Joint Circular No. 11/2005/TTLT-BNV-BLĐTBXH-BTC-UBDT on the region-based benefit coefficients for localities and employers.

b) The rate of a pension, if including the duration of employment before January 01, 1995, or the rate of a monthly benefit, if including the duration of employment before January 01, 1998, shall be governed by the regulations in effect upon a worker s wait for the calculation of such pension or monthly benefit as per Article 25 of the Decree No. 115/2015/ND-CP after having been approved in writing for termination of employment.

c) The incumbency of a deputy chief of communal police before January 01, 1995 shall be determined, with regard to social insurance benefit, according to the document no17/HT dated January 04, 1978 by the Ministry of Invalids and Social affairs.

Vietnam Social Insurance is requested to provide relevant instructions to provincial social insurance agencies./.

For the Minister

The Deputy Minister

Pham Minh Huan