Tiếng Việt
中文 (中国)
People with disabilities are always the most disadvantaged group in society. However, people with disabilities can also have parents, spouses and children to take care of and therefore, they still have to work to earn income to support themselves and their families. Knowing that employees with disabilities will suffer more injustices and difficulties than ordinary employees, the Government of Vietnam has prescribed many policies and special treatment regimes in favor of the group of employees with disabilities. So, what are the regulations on the employment of disabled employees in Vietnam?
According to Clause 2, Article 2 of the Law on Persons with Disabilities 2010, a person with a disability is a person who has a defect in one or more body parts or a functional decline manifested in the form of a disability that makes them difficult to work, live or study.
A disabled employee is an employee whose body part (legs, arms, spine, etc.) is disabled and/or the body’s function (hearing, vision, etc.) is damaged so his/her working ability is reduced.
The Government of Vietnam is aware of the common difficulties of people with disabilities and respects people with disabilities who perform righteous labor to cover daily living expenses.
Article 158, Section 4, of the Labor Code 2019 clearly states the Vietnamese State’s policy toward employees with disabilities.
Specifically, the State protects the labor rights and self-employment of employees with disabilities and has appropriate incentives and preferential policies for employers in job creation and employment for people with disabilities who come to work in accordance with the law on disabled people.
Regulations on the employment of disabled employees in enterprises
When employing employees with disabilities in their work, employers must ensure that the government’s regulations on employees with disabilities are followed so that employees with disabilities can have their legitimate rights protected.
No discrimination between employees with disabilities and other employees
The most important regulation when recruiting employees with disabilities is that there must be absolutely no discrimination between disabled employees and ordinary employees.
Non-discrimination includes two directions: stigma and favoritism.
Accordingly, the employer must not discriminate against the disabled employee, oppress the disabled employee by not assigning the job according to the correct position, or pay a lower salary than the employee in the same position with the same work performance, etc.
In contrast, employers must also not favor employees with disabilities by prioritizing light work, and heavy work, and giving them high salaries compared to employees in the same position, but the work efficiency is not commensurate with the level of work performance that ordinary employees have, etc.
Basically, employees with disabilities should be treated equally in all respects compared to ordinary employees and receive benefits in accordance with their performance.
Avoid discrimination in the direction of stigma as well as favoritism so as not to create pressure, and negative emotions, and violate the rights of disabled employees as well as other ordinary employees working at the enterprise.
If there is a discriminatory act between an employee with a disability and other employees, the employer will be fined from 5 to 10 million VND according to Point a, Clause 2, Article 8 of Decree No. 12/2022/ND-CP.
Do not assign disabled employees to take on heavy, hazardous or dangerous jobs
Clause 1, Article 159 of the Labor Code stipulates that the employer must ensure that working conditions, working tools, occupational safety, and health are suitable for people with disabilities.
Accordingly, enterprises employing employees with disabilities must ensure that employees with disabilities are able to perform work appropriate to their disability.
Due to the nature of their disability, it will be difficult for employees with disabilities to take up positions in heavy, hazardous and dangerous jobs according to the list issued by the Minister of Labor, War Invalids and Social Affairs such as normal employees.
Thereby, the employer cannot force the disabled employee to undertake heavy, hazardous and dangerous work.
However, if they consider themselves qualified to perform the above tasks, employees with disabilities can commit to filling those positions based on their own voluntariness and on the fact that they have received full information including labor risks in the job position from the employer (Clause 2, Article 160 of the Vietnam Labor Law 2019).
Regarding the list of heavy, hazardous and dangerous jobs, Circular 11/2020/TT-BLDTBXH, effective from March 1, 2021, stipulates 1838 occupations and jobs with heavy, hazardous, and dangerous elements and are divided into 42 different areas.
Compared with the previous regulations, the list of occupations with heavy, hazardous and dangerous elements has been supplemented with a significant number of occupations and jobs, but are still divided according to each specific field and classified according to working conditions type IV, V, VI.
However, the Decree only stipulates that all occupations and jobs with heavy, hazardous and dangerous elements, but does not specify that heavy, hazardous and dangerous work and especially heavy, hazardous and dangerous work correspond to the working conditions.
Thus, meeting the position of heavy, hazardous and dangerous work is very risky for ordinary employees and even more for employees with disabilities. Therefore, disabled employees need to be especially careful when learning about doing heavy, hazardous and dangerous jobs.
Organize periodical health examinations for disabled employees
Employees with disabilities, as well as ordinary employees, should have regular medical examinations to check whether they are still able to continue performing their jobs.
This is clearly stated in the laws.
According to Clause 1, Article 159 of the Labor Code 2019, the employer must ensure the working conditions, working tools, occupational safety and hygiene, and at the same time, organize periodical health checks for employees that are disabled.
According to Article 21 of the Law on Occupational Safety and Health, the employer must organize health examinations for the disabled employee at least once every six months (for normal employees, the employer must hold a medical examination at least once a year).
If the employer fails to organize periodical health examinations in accordance with the law, the employer will be fined from 01-03 million VND/disabled employee. The maximum fine is 75 million VND.
Properly implementing the annual leave regime for employees with disabilities
According to the provisions of Point b, Clause 1, Article 113 of the Labor Code 2019, employees with disabilities who work for 12 months for an employer will be entitled to 14 days of full-wage leave per year.
If an employee with a disability has worked for less than 12 months for the employer, the number of annual leave days will be calculated in proportion to the number of working months.
According to Article 114 of the Labor Code, if working for a full 5 years for an employer, a disabled employee, like an ordinary employee, will be entitled to an additional day of annual leave.
Employees with disabilities are not required to work overtime when they do not agree to the request
Clause 1, Article 160 of the Labor Code 2019 clearly stipulates that it is strictly forbidden to use employees who are mildly disabled people with a working capacity decrease of 51% or more, severe disabilities or particularly severe for overtime, working at night, unless the employee with a disability agrees.
Thereby, if the disabled employee does not agree, the employer will be fined from 05 – 10 million VND according to point b, clause 1, Article 31 of Decree 12/2022/ND-CP.
However, enterprises can still arbitrarily arrange for employees with mild disabilities whose working capacity decrease is less than 51% to work overtime and work at night without penalty.
Support regime for enterprises accepting disabled employees to work in Vietnam
Enterprises recruiting and employing employees with disabilities will receive many preferential policies from the Vietnamese government. This regulation has been clearly stated in Article 9 of Decree 28/2012/ND-CP stipulating production and business establishments employing 30% or more of the total number of employees who are disabled.
Accordingly, production and business establishments employing 30% or more of the total number of employees with disabilities as defined in Article 34 of the Law on Persons with Disabilities will enjoy preferential policies including:
- Provided financial support to improve working conditions and environment suitable for people with disabilities according to regulations of the Ministry of Labor, War Invalids and Social Affairs;
- Exempted from corporate income tax in accordance with tax laws;
- Receive preferential loans for production and business development projects from the Bank for Social Policies;
- Prioritized with the lease of land, premises and water surface according to the provisions of law;
- Exempted from rent for land, premises and water surface in service of production and business for production and business establishments employing 70% or more of disabled employees. Received 50% reduction of land, ground and water surface rents in service of production and business, for production and business establishments employing between 30% and less than 70% of employees with disabilities.
ASL LAW is the top-tier Vietnam law firm for Employment and Labor Law. If you need any advice, please contact us for further information or collaboration.
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