Thông tư 04/2015/TT-BLĐTBXH chế độ đối với người lao động bị tai nạn lao động

THE MINISTRY OF LABOR, INVALIDS AND SOCIAL AFFAIRS

Circular No. 04/2015/TT-BLDTBXH dated February 02, 2015 of the Ministry of Labor, War Invalids and Social Affairs guiding the employer’s compensation, benefit and medical expenses for employees suffered from occupational accidents and diseases

Pursuant to the Labor Code dated June 18, 2012;

Pursuant to the Government’s Decree No. 45/2013/ND-CP dated May 10, 2013 detailing a number of articles of the Labor Code on working time, break time, labor safety and hygiene;

Pursuant to the Government’s Decree No. 106/2012/ND-CP dated December 20, 2012 defining the functions, tasks, powers and organizational structure of the Ministry of Labor, Invalids and Social Affairs;

At the proposal of General Director of the Department of Labor safety;

The Minister of Labor, Invalids and Social Affairs promulgates the Circular guiding the employer’s compensation, benefit and medical expenses for employees suffered from occupational accidents and diseases.

Article 1. Scope of adjustment

This Circular guides the employer’s compensation, benefit and medical expenses for employees suffered from occupational accidents and diseases

Article 2. Subject of application

1. Agencies, organizations, enterprises, cooperatives and individuals that employ workforce (hereinafter referred to as employers), including:

a) Administrative agencies, public service providers, the people’s armed units;

b) Political organizations, socio-political organizations, socio-professional organizations and other social organizations;

c) Enterprises of all economic sectors;

d) Cooperatives;

dd) Foreign agencies, organizations, individuals, or international organizations with head offices being situated in the territory of the Socialist Republic of Vietnam;

e) Other organizations, individuals that employ labor force.

2. Individuals working under employment contracts, apprentices, and probationary employees working for employers (hereinafter referred to as employees)

3. Staff, officials and civil servants, persons from the people’s armed forces, the people’s public security shall enjoy the same benefits as the employees as defined in this Circular except otherwise as regulated by the legal documents concerning these subjects.

Article 3. Compensation

1. Subjects eligible for compensation:

a) Employees as victims of occupational accidents that impair work capability by 5% and over or are fatal except otherwise as defined in Point a, Clause 1, Article 4 hereof;

b) Employees as victims of occupational diseases as concluded by Medical Examination Council or by competent medical authorities shall be compensated in the following cases:

- Be fatal due to occupational diseases while at work or before being moved to other jobs, before resignation, job loss or retirement;

- Work capability impaired by 5% and over due to occupational diseases according to regular assessment of occupational diseases (as regulated by the Ministry of Finance).

2. Principles for compensation:

a) Compensation to employees as victims of occupational accidents shall be settled on each individual case without accrual of previous cases;

a) Compensation per case to employees as victims of occupational accidents shall be done as follows:

- For the first check-up, percentage of impaired work capability (proportion of bodily injury) shall be based on to determine the compensation;

- From the second and later check-ups, the increased percentage of impaired work capability shall be based on to determine the compensation for the difference in percentage of impaired work capability between current check-up and previous ones.

3. Compensation level:

Compensation to persons as victims of occupational accidents and diseases as defined in Points a, b, Clause 1 of this Article shall be calculated as follows:

a) At least 30 months of salary for employees losing work capability from 81% and over, or becoming fatal due to occupational accidents and diseases;

b) At least 1.5 times the salary for employees losing work capability from 5-10%; in case work capability is impaired from 11%-80%, compensation shall be determined in the following formula or in the table laid down in the Appendix 2 enclosed herewith:

Tbt = 1.5 + {(a - 10) x 0,4}

Where:

- Tbt: Compensation level for those who lose work capability from 11% and over (calculation unit: salary);

- 1.5: Compensation level for those losing work capability from 5%-10%;

- a: Percentage of impaired work capability due to occupational accidents and diseases;

- 0.4: Coefficient of compensation when impairment of work capability increases by 1%;

Example 1:

- Mr. A gets an occupational disease and in the first check-up, impairment of his work capability is determined as 15%. Hence, the compensation level for this first check-up is calculated as follows:

Tbt = 1.5 + {(15 - 10) x 0.4} = 3.5 (salary).

- In the second check-up, impairment of his work capability is determined as 35% (up 20% compared to the first check-up). Compensation level to Mr. A in the second check-up is calculated as follows:

Tbt = 20 x 0.4 = 8.0 (salary).

Article 4. Benefits

1. Employees losing work capability from 5% and over, or being fatal shall be entitled to benefits in the following cases:

a) Occupational accident caused by employees themselves; 

b) Accidents happen to employees on a back-and-forth traveling distance between their working place and home at a legitimate time (based on a case file provided by public security agencies or written confirmations issued by local authorities).

2. Principles: Benefits for employees as victims of occupational accidents shall be provided on each individual case without accrual of previous cases;

3. Benefit level:

a) At least 12 months of pay for employees losing work capability from 81% and over, or becoming fatal due to occupational accidents;

b) At least 0.6 times the salary for employees losing work capability from 5-10%; in case work capability is impaired from 11%-80%, benefit shall be determined according to the level as laid down in the Appendix 2 enclosed herewith or by the following formula:

Ttc = Tbt x 0.4

Where:

- Tbc: Benefit level for those who lose work capability from 10% and over (calculation unit: salary);

- Tbt: Compensation level for those who lose work capability from 10% and over (calculation unit: salary);

Example 2:

- Mr. B has an occupational accident for the first time caused by his violation of labor safety. After medical examination, the impairment of his work capability caused by the accident is determined as 15%; Benefits paid to Mr. B for the first time: Ttc = Tbt x 0.4 = 3.5 x 0.4 =1.4 (salary).

- In the second time, Mr. B has an accident when traveling from his working place to home (investigated and determined as a case defined in Clause 1 of this Article). In this second medical examination, impairment of his work capability is determined as 20%; Benefit level paid to Mr. B for the second time is:

Tbc = Tbt x 0.4 = 5.5 x 0.4 = 2.2 (salary).

Article 5. Special case’s compensation and benefits

1. In case employees who have accidents caused by others (not by the employees themselves) while on duty or complying with the employer’s legitimate appointment outside of the domain of agencies, enterprises, organizations, and cooperatives or without any clear cause identified, employers shall make compensation to such employees according to the provisions set out in Article 3 hereof.

2. In case employees who have accidents caused by others (not by the employees themselves) while traveling on a regular route between their working place and home at a legitimate time, or without any clear cause to the accident being identified, employers shall pay benefits to such employees according to the provisions set out in Article 4 hereof.

3. In case an employee has been covered by an accident insurance bought by the employer, such employee shall be entitled to compensation, benefits under the contract signed with the insurer in case of accident at work. If the sum of money paid by the insurer to the insured accident-at-work victim is lower than the limit as laid down in Articles 3, 4 hereof, the employer shall pay at least the remainder of the total amount as a compensation or benefit that the victim (or relatives thereto) shall be entitled to according to the provisions set out in Articles 3, 4 hereof.

4. If the employer fails to pay social insurance premiums for the employee who is a policy-holder under the law on social insurance, in addition to the compensation and benefit as defined in articles 3,4 hereof, employers in the place of the insurer must pay the social benefits to the insured employees who have occupational accidents, diseases as follows:

a) For employees losing work capability from 5%-30%, employers shall make a one-time payment as the benefit for occupational accidents and diseases equal to the limit as defined by the law on social insurance ;

a) For employees losing work capability from 31% and over, employers shall make monthly payments as the benefit for occupational accidents and diseases equal to the limit as defined by the law on social insurance ; Payment may be made once or on a monthly basis depending on agreement between the parties

Article 6. Salary as the basis for compensation and benefits

1. Salary serving as the basis for the calculation of compensation and benefits for occupational accidents and diseases is the average sum of six consecutive pay months before the occupational accident or disease. If employees, apprentices or probationary staff’s working time is less than six months, salary serving as the basis for the calculation of compensation, benefit is the average sum of consecutive months of pay before an occupational accident or disease take place.

2. Salary as defined in Clause 1 of this Article shall be determined specifically as follows:

a) For officials and civil servants, persons from the people’s armed units, the people’s public security, salary serving as the basis for calculation of compensation and benefits for occupational accidents and diseases shall be the total amount of within-grade pay, function allowance, seniority pay and others (if any);

b) For every employee working under an employment contract, salary serving as the basis for calculation of compensation and benefits for occupational accidents and diseases shall be the salary specified in the employment contract including pay for performance, pay for position and increment of wage (if any);

c) For every employee as an apprentice working for agencies, organizations or enterprises that have not yet set the pay rate for apprentices, salary serving as the basis for the calculation of compensation and benefits for occupational accidents and diseases shall be the region-based minimum pay announced by the Government; if those agencies, organizations or enterprises have already set the rate, salary serving as the basis for the calculation of compensation and benefits paid to employees during the apprenticeship shall be the rate agreed by the two parties;

d) For every employee who is on a probation period, salary serving as the basis for calculation of compensation and benefits for occupational accidents and diseases shall be the pay rate agreed by the two parties under the Article 28 of the Labor Code or the pay rate decided by competent agencies.

Article 7. Files for compensation and benefits

1. For employees as victims of occupational accidents and diseases as defined in Clause 1, Article 3, Clause 1, Articles 4, 5 hereof, employers shall be responsible for preparing the documentation for compensation and benefit, including:

a) Accident investigation report, minutes of meeting about announcement of the accident investigation report by the accident investigation squad of grass-roots level, central-affiliated provinces, cities or central level;

b) Medical examination report (to determine level of work capability impairment caused by occupational accident) or accidental death confirmation issued by forensic science agency or death confirmation by the Court in case of missing;

c) Authenticated copy of scene examination report, map of traffic accident site made by traffic police or written confirmation by local police or authorities;

d) Decision on compensation and benefits for occupational accident by employers (See the form provided in the Appendix 3 enclosed herewith).

2. For employees as victims of occupational diseases as defined in Clause 1, Article 3 hereof, employers shall be responsible for preparing files for compensation, including:

a) Employee’s records of occupational disease under the applicable law;

b) Occupational disease-related death confirmation note issued by forensic science agency or medical examination report (to determine level of work capability impairment caused by occupational disease) and conclusion by the Medical Examination Council;

c) Decision on compensation for occupational disease by employers (See the form provided in the Appendix 4 enclosed herewith).

3. The file shall be made into three sets:

a) One set to be kept by the employer;

b) One set to be kept by the employee as a victim of occupational accident or disease (or relatives thereto)

c) One set to be sent to the local office of Labor, Invalids and Social Affairs where the enterprise, agency or organization is headquartered within 10 days since the decision on compensation and benefits for occupational accident, disease is issued.

Article 8. Time limit for compensation and benefits

1. Decision on compensation and benefits to employees as victims of occupational accidents, diseases by the employer must be completed within five working days since the medical examination report (to determine level of work capability impairment caused by hard labor related accidents) from the Medical Examination Council is issued or since the occupational accident related death confirmation note is issued by the occupational accident investigation squad of provincial or central level.

2. Payment of compensation, benefits must be made once to employers (or their relatives) within five days since the decision is issued by the employer.

Article 9. Medical expenses

1. For employees as medical insurance policy-holders, employers shall pay part of the medical expense and expenses for first-aid, emergency and medical treatment outside of the scope of insurance covered by the insurer.

2. For employees who are not medical insurance policy-holders, employers shall pay once all of the medical expense from first-aid, emergency, normal treatment to being discharged from hospital.

3. In addition to the cases as defined in Clauses 1, 2 of this Article, employers are encouraged to pay medical expenses for employees as victims of other occupation-related accidents and diseases.

Article 10. Implementation organization

1. Level of compensation and benefit as defined hereof is the minimum. Employers are encouraged by the State to pay more than the limit as defined in this Circular in terms of compensation and benefits for occupational accidents and diseases.

2. Expenses for compensation, benefits and medical expenses paid for employees as victims of occupational accidents or diseases shall be included in the expenses for regular operation, production and business activities of agencies, enterprises and organizations, and at the same time shall be treated as logical expenses for tax assessment, payment of enterprise income tax by the work force employing enterprises under the Law on enterprise income tax.

3. Any employee who receives compensation, benefits for occupational accidents, diseases as defined hereof shall be also entitled to benefits of social insurance for occupational accidents, diseases as defined in the Law on Insurance (in case of a social insurance policy-holder)

Article 11. Employer’s responsibilities

1. Make documentation and carry out payment of compensation and benefits for employees (or their relatives) in accordance with this Circular.

2. Pay regular attention to employees’ health by organizing regular medical check-ups (to determine level of work capability impairment); carry out compensation for employees as victims of occupational accidents, diseases (if any); help employees with work capability impaired (if any) restore their functions via treatment and support.

Article 12. Responsibilities of the Departments of Labor, Invalids and Social Affairs

1. Cooperate with relevant agencies in making this Circular known to enterprises in the locality.

2. Instruct, investigate and monitor the payment of compensation, benefits and medical expenses for employees as victims of occupational accidents, diseases in the administrative division by the employer.

3. Receive and store the documents about compensation and benefits for occupational accidents, diseases from the employer

Article 13. Implementation effect

1. This Circular takes effect on March 20, 2015.

2. Annuls the Circular No. 10/2003/TT-BLDTBXH dated April 18, 2003 of the Ministry of Labor, Invalids and Social Affairs providing guidance on the payment of compensation and benefits for employees as victims of occupational accidents, diseases.

Any difficulties arising in the courses of implementation of this Circular should be reported to the Ministry of Labor, Invalids and Social Affairs for early instructions and supplements./.

For the Minister of Labor, War Invalids and Social Affairs

The Deputy Minister

Doan Mau Diep

 * All appendices are not translated herein