Can I suspend my employment contract to take maternity leave?

(Baonghean)- According to the information provided by Ms. Nguyen Thi B (TC district): She works for company X. She is only 3 months pregnant. Ms. B knows that the time off before giving birth cannot exceed 2 months. However, due to work pressure and the need to ensure the fetus, Ms. B wants to take time off in advance to rest.

Question: According to the law, does Ms. B have the right to temporarily suspend the performance of her labor contract to take maternity leave? Will Ms. B receive salary during that time off?

Reply:Regarding the suspension of the labor contract, Clause 1, Article 157 of the 2012 Labor Code stipulates: Female employees are entitled to 6 months of leave before and after giving birth; In case a female employee gives birth to twins or more, from the second child onwards, the mother is entitled to 1 additional month of leave for each child; The maximum leave before giving birth is 2 months. Accordingly, Ms. B is not entitled to a maximum of 2 months of leave before giving birth.

However, according to Article 8 of Decree No. 85/2015/ND-CP detailing a number of articles of the Labor Code on policies for female workers, pregnant female workers, if confirmed by a competent medical examination and treatment facility that continuing to work will adversely affect the fetus, have the right to unilaterally terminate the labor contract or temporarily suspend the performance of the labor contract, but must notify the employer in advance, along with the recommendation of the competent medical examination and treatment facility that continuing to work will adversely affect the fetus. The notice period for unilateral termination or temporary suspension of the labor contract is according to the period specified by the competent medical examination and treatment facility. In case of temporary suspension of the labor contract, the suspension period shall be agreed upon by the employee and the employer, but must be at least equal to the time specified by the competent medical examination and treatment facility for temporary leave. In case there is no indication from a competent medical examination and treatment facility regarding the time of temporary leave, the two parties shall agree on the time of temporary suspension of the performance of the labor contract.

In this case, Ms. B has the right to temporarily suspend the performance of her labor contract and wants to take leave from the first months due to poor health, she must have confirmation from a competent medical facility that continuing to work will adversely affect the fetus. If there is no confirmation from the medical facility, she must negotiate with the company about the time of temporary leave to avoid violating the provisions of the law.

Regarding the regime, Ms. B is only entitled to receive salary during her 6-month maternity leave. Outside of this period, Ms. B is entitled to leave according to the law and the agreement of both parties without receiving salary.

Law Office of Trong Hai & Associates