Workers who are not covered by social insurance and have work-related accidents - Who is responsible?

(Nguyen Ngoc Binh, Nghi Thu, Cua Lo Town)

Reply:

1. According to Clause 4, Article 39, LawSafety and hygiene at work(ATVSLĐ), stipulates the responsibility of employers regarding compensation and benefits in special cases when employees have occupational accidents as follows:

If the employer does not pay occupational accident and disease insurance (OAD) for employees who are subject to compulsory social insurance as prescribed by the Law on Social Insurance, in addition to having to pay compensation and allowances as prescribed in Article 38 of this Law, the employer must pay an amount corresponding to the OAD insurance regime as prescribed in Section 3 of this Chapter when the employee suffers an OAD.

The union inspects occupational safety and health issues at the enterprise. Photo: PV

2. According to Clause 2, Article 8, Circular 28/2021/TT-BLDTBXH dated December 28, 2021, the settlement of occupational accident and occupational disease regimes for individual cases is specifically regulated as follows:

For employees who are subject to compulsory social insurance, if the employer does not pay social insurance for them, the amount corresponding to the allowance payment regime prescribed in Clause 2, Article 42Law on Occupational Safety and HealthThe amount that the employer must pay to the employee who has a work-related accident or occupational disease instead of the social insurance agency is as follows:

a) For employees with reduced working capacity from 5% to 30%:Employers must pay one-time occupational accident and disease benefits at the rate of one-time benefits:

+ A 5% reduction in working capacity will result in a benefit of 5 times the basic salary, then for each additional 1% reduction, the benefit will be an additional 0.5 times the basic salary;

+ In addition to the allowance prescribed in Point a of this Clause, there is also an additional allowance calculated according to the number of years of contribution to the Occupational Accident and Occupational Disease Insurance Fund. From 1 year or less, it is calculated as 0.5 months. Then, for each additional year of contribution to the fund, an additional 0.3 months of salary paid to the fund in the month immediately preceding the month of the occupational accident or the month of being diagnosed with an occupational disease is calculated; in case of a work accident in the first month of contribution to the fund or a period of interrupted participation and then returning to work, the salary used as the basis for calculating this allowance is the salary of that month.

b) For employees with a reduced working capacity of 31% or more:

- Employers must pay monthly occupational accident and disease allowances to employees.

- Monthly allowance is specified as follows:

+ A 31% reduction in working capacity will be paid 30% of the basic salary, then for each additional 1% reduction, an additional 2% of the basic salary will be paid;

+ In addition to the allowance prescribed in Point a of this Clause, each month, an additional allowance is also received based on the number of years of contributions to the Occupational Accident and Occupational Disease Insurance Fund. From 1 year or less, it is calculated at 0.5%, then for each additional year of contribution to the fund, an additional 0.3% of the salary paid to the fund in the month immediately preceding the month of the occupational accident or the month of being diagnosed with an occupational disease is calculated; in case of a work accident in the first month of contribution to the fund or a period of interrupted participation and then returning to work, the salary used as the basis for calculating this allowance is the salary of that month.

Payment can be made once or monthly as agreed by the parties. In case of disagreement, payment will be made according to the employee's request.

LEGAL POLICY DEPARTMENT - LABOR RELATIONS

NGHE AN PROVINCE LABOR FEDERATION

(Tel:09 1974 2006;0375 037 037)