In the rapid spread of the Covid-19 epidemic, many businesses are facing difficulties because they had no jobs for their employees, forced their employees to take turns break, or even dismissing. At this time, how will the salary of the employee be paid?
1/ One year sabbatical approval
Clause 1, Article 111 of the 2012 Labor Code states that an employee has 12 consecutive months of working for an employer is entitled to annual leave of absence. For employees working in normal conditions, the number of annual leave is 12 days.
If having less than 12 months of working, employee is entitled to annual leave calculated in proportion to the number of working hours.
The special point in this provision is during the annual leave days, the employee will receive the full salary without working.
Therefore, if an employee uses annual leave to avoid epidemics, he / she will still have enough salary as working days (100% of the normal working day’s salary).
2/ Force to quit / wait to re-working
Different from annual leave, the salary in this case is determined according to Clause 3, Article 98 of the current Labor Code:
If it is because of electricity or water incident, but not the fault of the employer, the employee or for other objective reasons such as natural disasters, fires, dangerous epidemics, sabotage, etc. the severance pay will depends on agreement by the two parties but not lower than the regional minimum wage set by the Government.
Thus, according to the above provision, if an employee has to stop working or quit a job due to Covid-19 epidemic, he / she will be paid according to the agreement with the enterprise’s representative, but not lower than the regional minimum wage.
Article 3 of Decree 90/2019 / ND-CP stipulates the minimum wage for each region as follows:
Region I: VND 4.420.000 / month;
Region II: VND 3.920.000 / month;
Region III: VND 3.430.000 / month;
Region IV: VND 3,070,000 / month.
3/ Stop working as agreement
To protect his / her health, employee can choose this option when they have already use all leave days in a year and the enterprise does not allow them to quit job.
Accordingly, the employee agrees with the employer to take leave without salary, with an unlimited number of days off, to achieve the employer’s agreement
This is the option’s disadvantage, however, to avoid the spread of epidemic, workers should consider choosing if necessary.
4/ Transfer employee to do another jobs
Clause 1, Article 31 of the 2012 Labor Code provides that: When facing unexpected difficulties due to natural disasters, fires, epidemics, employers may temporarily transfer employees to do another jobs in comparison with the labor contracts.
However, the employee may only be transferred to another job for no more than 60 cumulative working days in a year.
In case 60 days have passed, if the employee must continue to transfer another job, employer must obtain the written agreement of the employee.
Before transferring the employee to another job, the employer must notify the employee at least 03 working days in advance, clearly notify the temporary work duration and arrange suitable work for the health, gender of the employee.
5/ Unilaterally terminate the labor contract
Under Point c, Clause 1, Article 38 of the current Labor Code, the employer has the right to unilaterally terminate the labor contract due to force majeure.
So which case is considered force majeure?
Clause 2, Article 12 of Decree 05/2015 / ND-CP lists cases of force majeure including:
– Disaster, epidemic;
– Relocation or narrowing of production or business locations at the request of competent state agencies.
So, in the event of a disease outbreak, the employer is entitled to dismiss the employee
The special point is employee must be informed in advance:
It is worth noting that employees must be informed in advance:
– At least 45 days for a indefinite term labor contracts;
– At least 30 days for a definite term labor contract;
– At least 03 working days for a seasonal labor contract or a certain job with a term of less than 12 months