Sick leave regime in current Vietnam Social Insurance Law

Social insurance, the formation of professional fund investment organizations, creating favorable mechanisms to attract professional investment staff, and having a department to supervise investment activities... are also issues that need attention.

Third, it is necessary to improve the service quality of the social insurance system.

In order to ensure the good settlement of benefits for employees when they are sick, social insurance agencies need to invest in developing information technology systems; each management subject of the social insurance sector is given a unique identification number and is consistent with the citizen identification number prescribed by the State to eliminate data duplication and fraudulent acts and profiteering in the settlement and payment of insurance regimes, including sickness insurance. In addition, it is necessary to review all agencies, organizations, other enterprises and individuals that hire, use and pay employees (especially non-state enterprises), requiring them to provide full information and documents related to the responsibility to participate in social insurance, on that basis clearly identifying subjects required to participate in social insurance according to regulations; in addition, it is necessary to strictly control the procedures for paying sickness insurance to ensure the correct subjects and regimes according to regulations, limiting insurance profiteering.

Fourth, it is necessary to strengthen measures to reform administrative procedures in implementing social insurance policies in general and in paying sickness insurance for employees in particular.

Reforming administrative procedures in the implementation of health insurance must ensure the principles of simplicity, ease, convenience, timely and full guarantee of participants' rights; promoting the implementation of the one-stop mechanism in resolving regimes and policies; and making administrative procedures public to people, agencies and units.

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In addition, the work of collecting and urging the collection of social insurance needs to be promoted; promptly detect violations of social insurance participants, and make recommendations to the competent authorities.

have the authority to handle; continue to widely deploy the form of information disclosure on labor-using units that violate social insurance laws, owe social insurance contributions, or are long-term late in paying social insurance contributions; file lawsuits in court against units that intentionally owe long-term social insurance contributions.

3.3. Some recommendations

3.3.1. Regarding legal regulations

The current regulations in the Social Insurance Law on sickness insurance have basically supported some income for employees during sick leave, inability to work or having to take care of sick children. However, in order for sickness insurance in Vietnam to be implemented more effectively, it is necessary to study and amend the current Social Insurance Law and its implementing documents to overcome the shortcomings and inadequacies in the current legal regulations, aiming to build new regulations that bring maximum benefits to employees, while ensuring social security and international economic integration.

According to Resolution No. 20/2011/QH13 dated November 26, 2011 on the Law and Ordinance Development Program of the 13th National Assembly and Resolution No. 23/2012/QH13 dated June 12, 2012 of the National Assembly on the Law and Ordinance Development Program in 2013, adjusting the Law and Ordinance Development Program in 2012 and the 13th National Assembly, the Government has been assigned to preside over the drafting of the Social Insurance Law Project (amended). Accordingly, the Ministry of Labor, War Invalids and Social Affairs has been assigned by the Government to preside over the drafting of this Law Project. Up to now, the latest Draft Law is dated August 3, 2014, preparing to submit to the 13th National Assembly for approval at the 8th Session.

Through studying the current Law on Social Insurance of Vietnam and the Draft Law on Social Insurance (amended) dated August 3, 2014, the author has some comments and recommendations as follows:

First, about the beneficiaries of sickness insurance

According to the Draft Law on Social Insurance (amended) dated August 3, 2014, the subjects entitled to sick leave benefits have been expanded compared to the current Law, specifically adding 2 subjects: (1) People working under labor contracts with a term of 1 month to less than 3 months; (2) Non-professional workers at the commune, ward and town levels (Article 24 of the Draft).

The addition of the two subjects of sickness insurance mentioned above comes from the need to expand the subjects participating in compulsory social insurance because the summary shows that the number of people participating in compulsory social insurance is currently low (accounting for about 80% of the people participating in compulsory social insurance nationwide and about 20% of the labor force) [9, page 7].

Regarding employees working under labor contracts with a term of 1 month to less than 3 months, the addition of this subject is consistent with the general trend of most countries in the world, which is to stipulate the application of compulsory social insurance (including sickness insurance) for all employees who have signed a written contract, demonstrating the progress of our State in wanting to expand the beneficiaries of sickness insurance, while at the same time limiting the situation of enterprises avoiding social insurance participation for employees by signing labor contracts of less than 3 months in a chain. Dr. Pham Do Nhat Tan - former Director of the Social Insurance Department, Ministry of Labor, War Invalids and Social Affairs also expressed his agreement with the addition of this subject to the Draft Law on Social Insurance Amendment [36, page 12].

However, according to the author, the application of sickness insurance for this group will currently lead to many shortcomings, especially causing difficulties for employers. The period of 1 to 3 months is very short. In the case of employees who have only worked for 1 month but are sick, according to regulations, the period of time they are entitled to sickness insurance is 30 days if they have paid social insurance for less than 15 years (Clause 1, Article 26 of the Draft). Thus, if employees take sick leave for a maximum of 30 days (1 month) and enjoy the regime

On this number of days off, the employer will be at a disadvantage because the number of remaining working days according to the employee's labor contract is not much, not to mention the case where the employee can take a leave to recuperate and recover after illness due to poor health. Moreover, applying sickness insurance for this group is currently very difficult to implement because the management of the group, revenue and expenditure is very complicated, while the application of information technology in labor management and settlement of sickness insurance benefits for employees in our country is still limited.

Therefore, in our opinion, it is not advisable to add the group of people working under labor contracts with a term of 1 month to less than 3 months to the group of people participating in compulsory social insurance, including sickness insurance. Instead, to ensure the rights of this group of employees, the law needs to have regulations to limit the situation of employers signing labor contracts of less than 3 months in a series, such as only allowing employers to sign labor contracts of less than 3 months no more than 3 times for each employee, or to sign no more than 4 labor contracts of less than 3 months in a year...

Regarding non-professional workers at the commune, ward and town levels, we find that adding this group is appropriate, in order to create conditions for non-professional workers at the commune level who are currently receiving allowances based on their work to participate in sickness insurance, in which a group has a relatively long working period at the grassroots level, with the policy of linking compulsory social insurance and voluntary social insurance will create conditions for this group to be able to participate continuously, ensuring social security after retirement.

Second, about the conditions for receiving health insurance.

Compared to the current Social Insurance Law, the Draft Social Insurance Law (amended) dated August 3, 2014 has added a provision that the condition for receiving sickness insurance is that employees who are sick, have an accident or have a child under 7 years old who is sick must have confirmation from a medical examination and treatment facility "with authority according to regulations of the Ministry of Health" .

The addition of this content is consistent with the actual situation, when in our country today the number of private medical examination and treatment facilities is increasing and diversified in form. The lack of strictness of current legal regulations when not stipulating which medical facilities are authorized to issue social insurance leave certificates for employees has created loopholes for employees to abuse and "buy" fake leave certificates to receive sickness insurance. This makes it difficult for social insurance organizations to implement sickness insurance for employees, and at the same time affects the social insurance fund. Therefore, I completely agree with this provision of the Draft Law on Social Insurance Amendment.

In addition, in our opinion, the current Social Insurance Law needs to be amended and supplemented with the following contents:

- Specify the conditions for the minimum period of participation in social insurance of employees before taking sick leave to avoid abuse and ensure fairness. Referring to the experience of some countries in the world, we can stipulate the minimum period of participation in social insurance of about 3 months before taking sick leave, which is completely consistent with the ILO's recommendation in Article 17 of Convention No. 102 and consistent with the common practice of many countries in the world. For cases of illness requiring long-term treatment, the maximum period of benefit should be regulated on the basis corresponding to the number of years of participation in social insurance. In cases where employees suffer from illness requiring long-term treatment and the treatment lasts for another year, it is proposed to keep the same rate as the final approved rate of the previous year (65%, 55% or 45%).

- Regarding the regulation excluding cases of illness and accidents due to the subjective fault of the employee in Clause 1, Article 22, it is necessary to specify more specifically the case of "drunkenness ", because it is very difficult to determine whether the employee was drunk at the time of illness or accident (not a work accident). Instead, it is possible to re-regulate the permissible alcohol concentration and the non-permissible alcohol concentration to determine

determine the exclusion case. At the same time, this also needs to be changed from "other addictive substances" to "other stimulants" to be reasonable because stimulants have harmful effects immediately after use without time like addictive substances.

Third, about the time of receiving sick insurance

Sick leave is also a content that lawmakers need to study and amend appropriately.

According to the Draft Law on Social Insurance amended on August 3, 2014, Clause 1, Article 25 (ie Clause 1, Article 13 of the current Law on Social Insurance) has added a regulation on the maximum time to enjoy sick leave benefits in a year for employees who work in arduous, toxic, dangerous jobs or occupations "or especially arduous, toxic, dangerous" in the list issued by the Ministry of Labor - Invalids and Social Affairs and the Ministry of Health or " work in places with regional allowance coefficients of 0.7 or higher..." (removing the word "regularly" compared to the current Law). Adding subjects doing especially arduous, toxic, and dangerous jobs or occupations is reasonable, because the Ministry of Labor, War Invalids and Social Affairs has issued a list of arduous, toxic, and dangerous jobs and occupations and especially arduous, toxic, and dangerous jobs (according to Decision No. 1152/2003/QD-BLDTBXH dated September 18, 2003 and Circular No. 36/2012/TT-BLDTBXH dated December 28, 2012), so there is no reason not to add this subject to have appropriate priority in resolving sickness insurance benefits for employees.

The draft also amended the regulation on the maximum period of time for employees with diseases requiring long-term treatment to enjoy the regime from "no more than 180 days in a year" to "no more than 180 days" . As analyzed about the shortcomings in this regulation in section 2.3, I completely agree with this amendment, in order to avoid abuse by employees to enjoy sickness insurance.

In addition, according to the author, it is also possible to study and amend the provisions in Clause 1, Article 23 on the period of enjoying sickness insurance in the direction of regulating the period.

The maximum benefit in a year is based on the time of participation in social insurance, regardless of working conditions, regional conditions or the age of the employee. For example, we can group the time of receiving sick insurance according to 3 age brackets: employees under 40 years old, from 40 to 50 years old, over 50 years old, because:

(1) The sickness and maternity fund is a short-term fund and has a very high sharing factor, so it is not really appropriate to stipulate the time to receive benefits for normal illnesses based on the time of social insurance contributions (this condition should only be used as a basis to determine the time off in cases of illness due to long-term treatment); (2) The time off to receive benefits according to age is consistent with the natural laws of human beings (the older you are, the weaker your health is and the more often you get sick).

Regarding the time to enjoy insurance when a child is sick, Article 26 of the Draft Law on Social Insurance has also been revised in a more appropriate direction, that is: adding regulations on the time to enjoy the regime when sick in one year " for each child " to ensure maximum benefits for employees when their second or more children are sick and have to take time off work to take care of their children; re-stipulating that in the case where both father and mother participate in social insurance, "the time to enjoy the regime when a child is sick of each father or mother is according to the provisions of Clause 1 of this Article" , meaning that both father and mother have the right to take time off work to enjoy the regime when their child is sick; at the same time, adding regulations on the time off work to enjoy the regime when a child is sick "calculated according to working days excluding holidays, Tet holidays, and weekly days off" . This amendment is completely reasonable, creating flexible conditions for fathers or mothers in arranging and organizing time and work to take care of sick children.

Fourth, about the level of sickness insurance benefits

The draft revised Law on Social Insurance has added a new provision in the article on the level of sick leave benefits to facilitate employers and agencies.

Social insurance in resolving sick leave for employees: “In case an employee has just started working or an employee who has previously paid social insurance and then has a period of work interruption and has to take sick leave in the first month of returning to work, the benefit level is equal to 75% of the salary paid for social insurance in that month” . This regulation has clarified the level of sick leave insurance for employees in case the employee has to take sick leave when he/she has just started working or has just returned to work after a period of work interruption (equal to the benefit level for other employees who are sick, have a disease requiring long-term treatment or take time off to take care of a sick child after many years of work). Compared to the provisions of the current Social Insurance Law, adding this provision will help social insurance agencies to be more convenient in the process of resolving sick leave insurance for employees, while ensuring fairness for all employees when they are sick or have an accident.

In addition, the removal of the regulation on the level of sickness insurance benefits for people with illnesses requiring long-term treatment in cases where the continued benefit of sickness insurance is lower than the general minimum wage, then it is adjusted to the general minimum wage is completely appropriate, due to the unreasonableness of this regulation as analyzed in the current situation section.

In addition, Article 28 of the Draft Law on Social Insurance Amendments has also added the provision that "the level of one-day sickness benefit is calculated by dividing the monthly sickness benefit by 24 days" , for employees with illnesses requiring long-term treatment, "the level of one-day sickness benefit is divided by the total number of days in the calendar month" . It can be seen that this is a basic amendment in the current legal regulations on sickness insurance, because according to the documents guiding the implementation of the current Law on Social Insurance, the level of one-day sickness benefit is calculated by dividing the monthly sickness benefit by 26 days. However, in reality, in the state agency sector, the working time in a month

Sick leave regime in current Vietnam Social Insurance Law - 10

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