The Covid-19 epidemic has seriously affected the development of
the economy and society. The situation of businesses being spacing as well as
suspension of production and service provision happens regularly in
epidemic-affected localities, and that also seriously affects the life
stability of employees. Because most enterprises’ financial situations get
worse, so the businesses seem like they cannot guarantee income for employees.
This is a force majeure and legal event, and the labor law has specific provisions
to balance and ensure the interests of employees but also make the best support
to enterprises.
Performing Labor Contracts in the
Period of Covid – 19 Epidemic
Specifically, according to the provisions of Clause 3, Article 99
of the Labor Code 2019, specific instructions are provided in Official Dispatch
No. 264/QHLĐTL-TL of Ministry of Labor – Invalids and Social affairs
about paying salary (known as “ stoppage salary”) for employees during the
shutdown period related to the Covid-19 epidemic on July 15, 2021; direct
instructions for businesses and employees during the epidemic period, in case
of having to suspend work due to an incident that is not the fault of the
employer such as a dangerous disease, the employee and the employer agree on
the salary according to the following regulations.
In case of having to suspend work for less than 14 working
days, the agreed stoppage salary shall not be lower than the minimum wage.
In case of having to suspend work for more than 14 working
days, the stoppage salary shall be agreed upon by both parties but must ensure
that that salary in the first 14 days is not lower than the minimum wage.
Accordingly, the labor relationship is a civil relationship as
well as ensuring the agreement between the parties, however, it is also
necessary to pay attention to ensuring the life quality of the employee,
thus stipulating the case of having to suspend work from under 14 days that the
parties have the right to agree on a salary which is ensured not lower than the
minimum wage; besides, in case of suspension for more than 14 days, this is
undesirable in the labor relationship as the damage for the employee is not
allowed to work as well as does not guarantee income, and this also for the
employer that they are not able to guarantee the output of goods and services
provided to the partner, as well as the normal operation of the business, etc.
Therefore, the law allows the parties to agree on the stoppage salary in this
case.
The epidemic is a force majeure. In the case of having to suspend
work for too long as it is unable to judge the progress of the epidemic, to
ensure the financial ability of the employer as well as the health and safety
of employees, the parties may agree to suspend performing labor contract. The
content specified at point h, Clause 1, Article 30 of the Labor Code 2019,
allows the parties to agree to suspend the labor contract, therefore we can
realize this is also an appropriate regulation in the current epidemic period.
Currently, when suspended in performing a labor contract, the employee is not
entitled to salary and other rights and benefits as agreed in the labor
contract. However, the employee and the employer may have another agreement on
employee benefits.
According to Article 31 of the Labor Code 2019, within 15 days
after ending the suspension period of the labor contract, the employee must be
present at the workplace as well as the employer must accept the employee’s
return to resume work under the signed labor contract in case of the valid
labor contract, unless otherwise agreed by the parties. Accordingly, the
employee and the employer must fully agree on the contents related to the
suspension of the labor contract, to avoid issues and disputes arising after
ending the suspension period of the performing labor contract.
In addition, Point c, Clause 1, Article 36 of the Labor Law 2019
stipulates that the employer has the right to unilaterally terminate a labor
contract in case of natural disaster, fire, dangerous epidemic, enemy sabotage
or migration, relocation, or downsizing of production and business under the
request of the competent state agency, and the employer has sought all remedies
but can’t help reducing personnel. Therefore, in the situation of dangerous
epidemics, termination of the labor contract with termination grounds is
considered a non – illegal act of unilaterally terminating the labor contract.
However, the grounds for termination because of the dangerous
epidemic that the employer has tried all measures to overcome but can’t help
reducing the personnel are only necessary conditions that the employer needs to
comply with, besides, Employers need to comply with the procedure for
unilateral termination of labor contracts in terms of the notice period, as
well as done allowances to employees when unilaterally terminating labor
contracts according to regulations in law.
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