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Vietnam: Issues arise when getting laid-off employees back to work after the Covid-19 pandemic has been contained

The outbreak of the Covid-19 pandemic in Vietnam caused many employers to close their businesses and lay off employees. As such, do the laid-off employees have the right of first refusal under local law when the Company reopens for business after Covid-19 containment? If so, is that under law or best practice?

This question can be divided into 2 cases:

The first case is that the employees are suspended from work for a reasonable period of time or the contract is suspended as agreed in accordance with Article 30 of the Vietnam Labor Code.

According to the provisions of Article 31 of the Vietnam Labor Code 2019 regulates that, within 15 days from the expiration of the period of temporary suspension of the performance of the labor contract, the employee must be present at the workplace and the employer must agree the employee to return to work under the signed labor contract if the labor contract is still valid unless otherwise agreed upon by the two parties or provided for by law. At this time, the employer is responsible for arranging for the employee to do the work in the signed labor contract; in case the work cannot be arranged in the signed labor contract, the two parties shall agree on new work and amend and supplement the signed labor contract or enter into a new labor contract. Thus, the arrangement of work as in the agreed contract is the obligation of the employer after the suspension of the contract. And usually, the end of the contract suspension is usually the time when the epidemic is under control and the company reopens for business. Thus, it can be understood that, after the agreed period of cessation of work or suspension of the contract, these employees have the first priority to return to the old position as they did. In fact, in many cases, employers have hired new people to take the positions of employees who are temporarily suspending their contracts and this is not legal. At the end of the contract suspension period, the employer did not accept the employee back to work but still accepted someone else to work in their position. In these cases, when there is a dispute, the court usually judges that the employer must take back the employee or compensate them.

The second case is where the employer fires the employee according to Point c, Clause 1, Article 36 or Article 42 of the Vietnam Labor Code.

In this case, the employer has fired his employees, so the employer is not obliged to take back these employees when the epidemic is under control.

Currently, because of the Covid-19 pandemic, many problems about labor and employment have emerged in society. One of the most prominent issues is the issue surrounding the question of whether workers who are temporarily laid off have the right of priority under local law when the company reopens after the Covid-19 pandemic is prevented. Employers need to pay close attention to the changes occurring in this tumultuous period and strictly comply with the provisions of the law on the right of employees in the Covid-19 crisis. In addition, employers can also contact a reputable law firm to receive advice and in-depth answers to labor and employment issues during the Covid period.

ASL LAW is the top-tier Vietnam Labour law firm for Employment and Labor Law. If you need any advice, please contact us for further information or collaboration.

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